145 -

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.)
Drainage

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 NC. 566, 58 S.E. 2d. 343 (1950).
og N.C.G.S. sec. 113-257.





_______________________






16 -

The Court in a case in 1950 said that:

"With respect to surface water, the duties of owners of
adjoining lands respectively on a different level are
reciprocal and complementary. The lower land is servient
to that on a higher level in the sense that it must re-
ceive 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... The ques-
tion whether more water or less water is caused to flow
on to the lower land -- which may be a factor bearing on
liability -- is often by no means the most important.
The manner of its collection and release, the intermittent
increase in volume, and destructive force, its direction
to a more vulnerable point of invasion, may often become-
important," 369/

The Court has indicated that, in general, a lower land owner may not

obstruct the natural surface drainage so as to throw surface waters back

upon the land of a higher owner 370/, nor divert surface waters from their

natural course of descent or otherwise onto another's land to his damage.371/

The Court has applied a similar rule to drainage and other cases where water

in a natural watercourse has been diverted onto another's land to his damage.
The rule has frequently been stated that "one may increase and accelerate

but not divert." 372/

369/ Phillips v. Chesson, 231 N.C. 566, 58 S.E. 2d. 343 (1950). See also
Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E. 2d. 434 (1939); and
Porter v. Durham & Brown, 74 N.C. 767, 799 (1876). But compare with Raleigh
and Augusta Air Line Co. v. Wicker, 74 N.C. 220, 226-228 (1876).
370/ See, e.g., Porter v. Durham & Brown, 74 N.C. 767, 779-780 (1876);
Mizell v. McGowan, 120 N.C. 134, 26 S.E. 783, 784 (1897).
371/ See, e.g., Jenkins v. Wilmington and W. R. Co., 110 N.C. 138, 15 S.E,
193, 194 (1892); Rice v. Norfolk and.C. R. Co., 130 N.C. 375, 41 S.E. 1031
(1902); Rhyne v. Flint Mfg. Co., 182 N.C. 489, 109 S.E. 376 (1921); Mizell
v. McGowan, 129 N.C. 93, 39 S.L. 729 (1901); Barcliff v. Norfolk So. R.Co.,
168 N.C. 268, 84S.E. 290 (1915).
372/ In some such cases the Court has added in effect "but not divert and
flood or cast the water onto another." See, eog., Hocutt v. R.R.Co., 12-
N.C. 2-- 1-, 32 S.E. 61 (189-97. At any rate this was generally the question
in issue rather than any liability for reducing the flow. (See Artificial
and Developed Watercourses, ante.) This rule sometimes has also been stated
in cases dealing with the drainage of surface waters onto another's land
rather than into a natural watercourse on one's own land. See, e.g.,
Greenwood v. Railroad, 144 N.C. 446, 57 S.E. 157 (1907).







- 147 -


In line with the first part of this quotation the Court has indicated

that a riparian landowner may clean out, widen, deepen, etc. the natural

drainway for surface waters which leads into a natural watercourse on his,

own land without liability to others below for any increase or acceleration

of the flow of the watercourse. The Court in an 1892 case also said that

the owner of land crossed by a swamp, which was said to be a natural water-

course, could deepen its main channel to reclaim previously overflowed land

along it. 373/

In one case the Court possibly treated a canal dug through a natural

drainway from a swamp as a natural watercourse. 237/ At any rate, the Court

said it was lawful to construct it. The Court first concluded that there

would be no liability for thus accelerating the flow from the swamp into a

natural watercourse, providing the increased flow did not exceed the natural

capacity of the watercourse, It finally held, however, that such a proviso

should not be added and that there would be no liability so long as neither

surface water nor any natural watercourse were diverted from its natural

drainway and water thereby thrown upon another's land, which was found by

the jury not to have happened. (The Court also held that there was no duty

to drain away any waters from the watercourse to offset the waters added by

the accelerated flow.)

The Court noted that "great hardship may sometimes occur from the unlim-

ited right of increase and acceleration, and that there are some authorities

limiting it to the capacity of the natural outlet." But the Court also

noted that "any other rule would prevent the drainage of large bodies of

73/ Jenkins v. Wilmington and W. R. Co., 110 N.C. 438, 15 S.E. 193, 195
(1F92).
374/ Mizell v. McGowan, 120 N.C. 134, 26 S.E. 783 (1897); 125 N.C. 439,
34 S.E. 538.(1899); 129 N.C. 93, 39 S.E. 729 (1901).






- 148 -


swamp lands of great natural fertility and capable of the highest degree of

improvement, but now worse than useless. They will eventually be needed to
support an ever-increasing population, and.to shut them' up indefinitely as

the mere homes of disease is repugnant to the highest principles of public

policy and of private right." The Court concluded that it could"frame no

better rule that would be capable of practical application. 37 f

With respect to diversion, the Court added that "a man can dig ditches

wherever he pleases upon his own land, provided he runs them into a natural

watercourse before leaving hs own land, -subject 6fly to the limitation

against diversion, ~76/ 'But, if he cannot reach a naturall watercourse with-

out going on the lands of another, he must proceed under chapter 30 of the

Code." 377/ The Court had reference to legislation which is still in force

in substantially similar form. This legislation provides for a proceeding

in the nature of condemnation to enable a landowner who cannot conveniently

'375/ Mizell v, MoGowan, 129 N.C. 93, 39 S.E. 729, 729-730 (1901). The Court
said that: "Suppose the natural capacity of the watercourse was made the test
of the rule; it would be so extremely difficult of application as practically
to destroy its value, What is the natural capacity of a stream? Is it mea-
sured at low water or at high water? Almost any stream can carry off what-
ever water may be made to flow into it in dry weather, or perhaps even in
ordinary times.- On the contrary, the clearing up of our lands is having the
double effect of greatly accelerating the flow of water, and at the same time
filling" up our streams with sand, so that very few of them can now carry the
water naturally flowing into them after heavy rains, Again, suppose that the
upper tenant were compelled to regard the natural capacity of the stream
how far down would this limitation extend? Naturally many others would drain
into the same stream, so that the landowner near its mouth would get the
accumulated waters of all those above him. In case of injury, how would he
apportion his damages, and where would the liability of each tort feasor be-
gin and end? These questions, it seems to us, would severely tax the utmost
ingenuity of the courts, and leave the jury in such a state of perplexity
as to seriously endanger their intelligent determination of the issues."
376/ The Court in Rice v. Norfolk and C. R. Co., 130 N.C. 375, 41 S.E. 1031,
1033 (1902) in a case apparently dealing with diversion of surface waters in
a pond onto another's land said that "there is an essential difference..
between drainage into natural watercourses and that into canals or other
drainways."
377/ Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729, 730 (i901).






- 149 -


drain his land, except by cutting drains, etc. across the lands of another

to do so upon payment of damages. 378/ (See Condemnation and Related Pro-

ceedings, post, with respect to this and related legislation.)

The Court has indicated that the right to drain into a natural water-
Scourse on one's own land ordinarily does not include the right to drain off

surface waters through ditches, canals, or other artificial watercourses

across another's lands even though it is the only feasible way to drain

one's land. The Court so indicated in a case in 1939 where a natural basin

with no natural outlet had been drained by cutting a ditch through a ridge

onto and through the lands of others. The Court concluded that such a ditch

was not a natural watercourse and the landowner had no right of action

against the damming up and obstruction of a stream into which the ditch

drained. 379/ In an earlier case the Court concluded that a drainage ditch

across another's land was not a natural watercourse. 380/ Notwithstanding

that it was dug along the natural drainway from one's farm, the Court held

that there was no right to go upon the neighbor's land to enlarge the ditch,

and concluded that since the landowner had not obtained the necessary con-

sent from the adjoining landowner or did not otherwise have a right to en-

large the ditch he could not require compensation for part of the cost of

such construction, under certain legislation then in force. There is some

existing legislation of this general nature. 381/

378/ See N.CG.Sc sec. 156-2.
T9/ Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E. 2d. 434 (1939).
The Court also held that no prescriptive rights had been acquired to thus
drain across another's lands. (See Prescriptive Rights, post,)
380/ Porter v. Armstrong, 129 N.C, 101, 39 S.E. 799, 801 (1901). The Court
noted that the ditch was fed by a number of lateral ditches and carried water
in more concentrated form than would have passed naturally through the drain-
wayo
381/ N.C.G.S. sec. 156-26, et. seq.







- 150 -


Legislation enacted in 1953 provides that:

"If any person shall fell any tree or put any obstruction
in any natural or artificial drainage ravine, ditch or
other water outlet which serves to remove water from farm
or agricultural lands, whereby the natural and normal
drainage of said land is impeded,- delayed or prevented,
the person so offending shall remove such obstruction
within seven calendar days, and upon failure to so remove,
shall be guilty of a misdemeanor and fined not to ex-
ceed fifty dollars ($50.00) or imprisoned not to exceed
thirty (30) days." 3t8/

Somewhat similar legislation, applicable within levee or drainage dis-

tricts, is discussed below,

Levee or Drainage Districts

Beginning in 1909, North Carolina legislation has enabled the organiza-

tion of levee or drainage districts. The existing legislation 383/ provides

in part that:

"The clerk of the superior court of any county in the
State of North Carolina shall- have jurisdiction, power
and authority to establish levee or drainage districts
either wholly of partly located in his county, *..and
to locate and establish levees, drains or canals, and
cause to be constructed, straightened, widened or deep-
ened, any ditch, drain or watercourse, and to build levees
or embankments and erect tidal gates and pumping plants
for the purpose of draining and reclaiming wet, swamp or
overflowed land; and it is hereby declared that the drain-
age of swamp lands and the drainage of surface water from
agricultural lands and the reclamation of tidal marshes
shall be considered a public use and benefit and conducive
to the public health, convenience and welfare, and that the
districts heretofore and hereafter created under the law
shall be and constitute political subdivisions of the State,
with authority to provide by law to levy taxes and assess-
ments for the construction and maintenance of said public
works. ..A petition signed by a majority of the resident
landowners in a proposed drainage district or by the owners
of three-fifths of all the land which will be affected or
assessed for the expense of the proposed improvements may
be filed in the office of the clerk of the superior court

382/ N.C.G.S. sec. 156-54 et, seq.
383/ N.C.G.S. (1955 Supp.) sec. 77-14.






- l51 -


ofr nycounty in which a :part of the lands is located,
setting forth that any specific body or district of
Island. in the county and adjoining counties. ..iasubject
to overflow or too wet for cultivation, and the public
benefit or utility or .the public health convenience or
welfare will be promoted by draining, ditching, or
S. leveeing the isaze or by changing :or improving the
natural watercourses..." 387

A board of 3 viewers shall be appointed to examine the land in the pro-

posed district and file a preliminary report. One shall be a drainage

engineer recommended by the Board of Conservation and Development, and none

shall own any property in the proposed district. They shall determine:

"1. Whether the proposed drainage is practicable or
Snft; 2. Whether it will benefit the public health ore;<
any public highway or be conducive to the general wel-
tarei of the community;, ). Whether the improvement pfot -
posed will benefit the lands sought to be benefited;
Z' Whether or not all the lands that are benefited are
included in the proposed drainage district; 5. Whether
or not the district proposed to be formed is to be a
reclamation district or an improvement district. A
reclamation district is defined to be a district organ-
ized principally for reclaiming lands not already under
cultivation. An improRemernt district is defined to be
a district organized principally for the improvement of
S lands thdn under cultivation. The board of viewers -ahall
further report, if the district is a reclamation district
-withis the above definition, whether or not? the proposed
drainage would be justified by the additional value for
agricultural purposes given to land so drained." 385/,.
If the board files a favorable report, a hearing shall be held to con-

sidef a ny objections to it. The property. owners within the district shall

have received notice thereof as prescribed.by law., Lands that-will not.be

benefited shall 'be excluded, or any additional lands that moay.be benefited

miy be included, if certain procedural requirements are met. Any landowner

who feels that his land will not be benefited may appeal to the courts to

determine whether his land should be excluded. The Court has said that a

3/, NC..S.i secs. 156-54 and 156-56.
^/ NUCo.GoS. sees.:156-62.|








minority Janowdier.cai~nto, 4aioreeSz. conp t t-h pie*tieabit^ of the form-
ation of .a district, 86. For ipoieft of aY deb oaei yF~ such districts

see Condemnatton -anItRelated -Prooeading, po ts : .;

The boards of ivrdea haU-,at~fertala a de.atled surveyjtdraw up plans,
and assess any damages claimed by anyone for "land taken or for inconvenience

imposed," or other legal damages sustained from the drainage or levee works
which shall be considered separate and apart from any benefit to such lands.

It shall classify all agricultural lands in the district into $ classes,
according to the degree of benefit received, which shall form the basis of

the assessment jdf benefits to the *lndie Tr draif"laeg.puxposoqe Lands on

which health aonditiosjare improved, Althousgh oa ibUprzov-ed O4t agricultural

purposes p.s :.wel -as ,lets an ,sttets ti zb1oin .Mand cities, and small rural
residential propertiesi,-may be assessed,.,thtbito .,tetxcesAto any specific
classification-. Another hearing, fra vhiichithee miay1:b*: appeal, is then

held on tl.e report The prapdadi proj et -ahall.be refused if ahe court con-

clud.esd that beracts of osantctifa i -.e :bined .:ith a-e oafndt of damages

assess66, will belgreater thanL be ,rea lting beneOa~tA thO W hands affected,

A diitct.; onde established; aball havea_. bord. of 4tt.e drainage
:. comisnioners ;ippeintedby- thqbh court frt onr.og-persons :who have been ap-

proved .iba ma drity.:of the landowners in .an election, for: that pIp~a Or
theyy ay(isiqply be appoi-nteddb tAle:;lerk -af athe Saupeor, coutrlpA hbsa-
discretion. ..87/ The coamlisastners'shall appcant a coioetent :drainage:
' :engineerras superintendent of construction, ,aslappoved bytheo eard qtr.

-Conservatinri andaDevelopmant .: f evr ie:.; ., : r -

S3'Saeltori 'iiyitel; 163 -N.-C 90, 798B3. i27,; 429 0813). '1 i
36/ Each landowner gets one vote per acre of land owned and benefited,
except that if one owner owns more: tthda half.'o6f le.a1 ~iFnh-a str t ie
shall be allowed to elect only two of the co~i.eatonere, theorthAird\' be
elected by the remaining landowners,


__






153 -

If the total cost of the improvement, including an item to cover 3 years

of maintenance, exceeds: 25 per acre on all land in the district, bonds shall

be issued to cover the cost, rather than an assessment against the landowners,

..provided that any landowner may avoid payment of interest on such bonds by

immediately paying his share of the cost. There may be future 'assessments

for maintenance costs or certain other purposes, as well as certain additional

bond issues,

Subdistricts may be formed within main districts, withththe right to use

the ditches or canals of the main districts for outlets.

It is further provided that: "If any person shall violate any of the

provisions of law in reference to districts as provided in this chapter,

or shall leave any.log, brush, trash, or other thing where it is liable to

wash into an adjacent stream and obstruct the flow of water or cut any tree

so as to fall in a stream, or place any other obstruction in a stream in a

drainage district, he shall be fined not more than fifty dollars or im-

prisoned not more than thirty days." 3 /

Drainage By Counties

In counties with more than 100,000 population, the county may clean out

and drain any part of any nonnavigable stream, .creek,, or Swamp area to promote

the health of its citizens, if the agricultural benefits would be negligible.

Such work may be done by,.,through, or under the supervision of the health

department, sanitary committee, drainage commission, or other department of

the county. A county-wide tax not to exceed 20 per $100 of taxable property

may be assessed to cover the cost. 389/

38 N.C.G.S. sees. 156-138.
M39/ N.C.G.S. sec. 156-139, et. seq.