Condemnation and Related Proceedings

Material Information

Condemnation and Related Proceedings
The Conservation Foundation


Subjects / Keywords:
Flood damage ( jstor )
Water usage ( jstor )
Property condemnation ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Richard Hamann's Collection - Condemnation and Related Proceedings
General Note:
Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 27
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

Source Institution:
Levin College of Law, University of Florida
Holding Location:
Levin College of Law, University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.


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While a person might otherwise be entitled to money damages or an

injunction to prevent a certain use of water, there may be a possibility

that in some cases he may be held to be stoppede" to assert such a right,

particularly with respect to an injunction, such as where, on reliance upon

his implied consent, another water user has made large investments in order

to make use of water. ~11/ No water cases where this has been done appear

to have come before the State Supreme Court for decision. In one case, however

the Court indicated that if a riparian owner changes the course of a stream

under circumstances which give indication that the change is to be a perma-

nent one and a lower riparian owner, accepting the change, has built mills

and made other improvements to utilize the new course, under certain cir-

cumstances he may enjoin or otherwise recover against the upper owner for

later disturbing the new course, on "the doctrines of dedication and estoppel."

But the Court held that this was not such a case, (See Artificial and

Developed Watercourses, ante.) 512/

Condemnation and Related Proceedings

Condemnation for or by Various Purposes, Persons, Agencies, or Organizations.

Municipal or Public Water Supplies and Sewer Systems. Legislation

provides that: "All municipalities operating water systems and sewer systems,

and all water companies operating under charter from the State or license
511/ See 56 Am. Jur. Waters, sec. 365; 93 C.J.S., Waters, sec, 36(5) b. But
see note 167 regarding verbal consent to place milldam on land of opposite
owner,. I.C.GS. se6. 22.2 dealss with lied for a written agreement....
512 Lake Drummond Canal and Water Co. v. Burniham, 147 N.C. 1i, 60 S.E.,
60-, 653 (1908). In another case, the Court held that where a lower riparian
owner obtained a judgment against a power company for obstructing the flow
of water and interference with his ferry, the power company was stoppede"
from denying that its dam wrongfully interfered with and permanently damaged
the lower owner, while he was stoppeded" on receiving payment of the per-
manent damages assessed, from denying that the company bu such payment
acquired an "easement" to continue such use as against the operation of his
ferry or damage to his land, etc., but not with respect to a type of injury
which could not reasonably have been foreseen at the time of the lawsuit.
Bruton v. Carolina Power and Light Co., 417 N.C. 1, 6 SE. 2d. 822 (1940)o


202 -
from municipalities which may maintain public water supplies, may acquire by
condemnation such lands and rights in lands and water as are necessary far the
successful operation and protection of their plants." 'l/

The Water and Sewers Authorities Act of 1955 authorizes such author-
ities as are legally formed thereunder to acquire "any lands or rights
in land or water rights in connection therewith" by exercising "the right
of eminent domain in accordance with the General'Statutes of North Carolina

which may be applicable to the exercise of such powers by mUnicipalities
or counties.,"
However, a certificate authorizing the use of condemnation or any
similar proceeding must first be obtained from the State Board of Water
Commissioners. "An Authority seeking such certificate shall petition the
Board therefore in writing, which petition shall include a description of the

waters, or water rights involved, the plans for Impounding or diverting such
waters, and the names of riparian owners affected thereby insofar as known
to the Authority. Upon receipt of such petition, the Board shall hold

public hearing thereon after giving at least thirty days written notice
thereof to known affected riparian owners and notice published at least once

each week for two successive weeks in a newspaper or newspapers of general
circulation in each county in which lower riparian lands lie.1' This might
mean each county through or along which the stream in question, or some larger

stream it may empty into, or runs on its course to the ocean or to some other

"The Board shall.issue certificates only to projects which
it finds to be consistent with the maximum beneficial use .
of the water resources in the State and shall give para-
mount consideration tothe State-wide effect of the prow
posed project rather than its purely local or regional

13/ N.C.GO.S, secs. 130-111 and 130-112. See also sec. 40-2, ,

203 -

effect. In making this determination, the Board shall
specifically consider:
(1) The necessity of the proposed project;
(2) Whether the proposed project will promote and
increase the storage and conservation of water;
(3) The extent of the probable detriment to be
caused by the proposed project to the present beneficial
use of water in the affected watershed and resulting
damages to present beneficial users;
(4) The extent of the probable detriment to be
caused by the proposed project to the potential benefi-
cial use of water on the affected watershed;
(5) The feasibility of alternative sources of
supply to the petitioning Authority and the comparative
cost thereof;
(6) The extent of the probable detriment to be
caused by the use of alternative sources of supply to
present and potential beneficial use of water on the
Watershed or watersheds affected by such alternative
sources of supply;
(7) All other factors as will, in the Board's
S opinion, produce the maximum beneficial use of water
for all in all areas of the State affected by the
proposed project or alternatives thereto." 5l1/

Any final decision by the Board is expressly subject to judicial review,

Another 1955 Statute, which enables the joint acquisition, operation, etc.

of certain water supply facilities by two or more municipalities, does not

expressly provide any powers of condemnation for such purposes, but the

powers of condemnation individually held by each municipality presumably
may be employed for such purposes. A Sanitary District may acquire by con-

demnation real and personal property, easements, rights-of-way and water

rights within or without its limits "necessary or convenient" for the
construction or maintenance of its works. j55/ Various State or other public

institutions or agencies also are provided with certain condemnation powers.516

The extent to which such condemnation powers and proceedings may be
* validly employed to obtain water to supply industrial, irrigation, and other

51Z/ N.C.G.S. (1955 Supp.) sec. 162A-1, et. seq.
351/ N.C.G.S. sec. 130-39, See Sanitary Districts, ante.
al/ N.C.G.S. sees. 143-144 and 40-2.

204 -
commercial needs, as well as for drinking water, fire-fighting and other
public purposes, is problematical, This question may depend upon the
language of the applicable legislation as well as upon constitutional limi-
tations on the use of condemnation. Recall, for example, that legislation
provides that condemnation may be used for public water suppy purposes,
but without indicating what such purposes may include. 517/' The Court in

1924 said that under the general condemnation statutes municipalities had a
right to "acquire all necessary land and water rights by purchase or condem-
nation (paying 3ust compensation) or otherwise, .fr. the public use or benefit
of such body.politic." In this case the city was-using groundwaters to

supply its inhabitants and outsiders with water (for a fee) as well as using
it for fire fighting, sanitary purposes, and perhaps other municipal purposes.
The Court held that it had condemnation powers, possibly for all such

purposes. The lower court awarded permanent damages and gave the city the
right "to continue and to operate its wells at its pumping station as it may
desire according to law, because of its condemnation powers," But the extent
of the water uses that could lawfully be thus supplied by the city was not
in issue on appeal, nor discussed by the Court. 518/
The extent to which the right to pollute surface or groundwaters with
the treated or untreated refuse from sewage systems may be validly acquired

r,5177 Note also that the legislation relating to street and interurban
railway companies (N.C.G.S, sec. 60-134) purports to authorize them to sell
their surplus electric power: upon reasonable terms, without indicating to
whom it may be sold. See also McKinney v. Deneen, 231 N.C. 50., 58 S.E. 2d.
107 (1950), and Phillips v. Mining Co,,. 244 N.C. 17, 92 S.E. 2d. ,29 (1956),
in which the Court found it unnecessary to directly decide the constitution-
ality of legislation (N.C.QS. sec, 7-A5)~ giving mica and kaolin miners the
right to pollute streams, by holding that the legislation apparently did not
purport to abrogate their liability to others for any resulting damages.
L18/ Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 488,4 (1924).

205 -

thrbugh condemnation is o :a somewhat int doubt. Certain rights to pollute
waters which do not furnish public drinking water supplies may possibly be

acquired by condemnation. .9/ But it see-ii doubtful whether the right to

Continue pollution which constitutes a public nuisance or a statutory mis-

demeanor may be condemned.

In any event, many .sewage -disposal systems must no be approved by the

SStream Sanitation Committee and, in the case of the pollution of sources of

public drinking water supplies, by the State Board of Health' Moreover, the
pollution of a stream which furnishes a public drinking water supply may be

enjoined on application by any person, presumably whether or not the polluter
had employed condemnation proceedings. (See Pollution, ante.)

Hydroelectric Power Dams And Related Purposeso--Electic power or lighting

companies are by legislation provided with condemnation powers "to take such

lands as may be necessary for the establishment of their reservoirs, ponds,

dams, works...or powerhouses, with the right to divert the water from such
ponds or reservoirs and conduct the the point of use for the

generation of power at its said powerhouses, returning said water to its

proper channel after being used." 52~/

I59' See particularly the milldam cases discussed under Balancing the
Interests, Equities, and Conveniences, ante. Moreover, kaolin and mica miners.
cotton, mills, and perhaps other enterprises have been granted certain special
privileges to pollute various water sources, by general, special, or local
legislation, possibly without any need to exercise condemnation proceedings,
although they may be held liable for any damage. See Pollution (Other-
Special Privileges or Protection), ante. In Clinard v. Town of Kernersville,,
2 215 N.C. 745, 3$ S.E. 2d. 267 (1939)the Court expressly assumed that the defen.
-dant town had condemnation powers to pollute a certain stream with industrial
wastes. The streamm was not shown to furnish a public water supply.
52/ N.C.QS,.'ec. i6-5 (see also sec. Eo-0). Such condemnation powers
are also granted to telegraph and telephone companies, by sec. $6-$.

_ ~I~

-. 206 -
The. CQUr L. e in in ;a.cate eoit zp!t. Pp eiinfil i
actionon held. th tohe r toypert. te entire lw." of a, river through a
S tunnel leading froAma hydrelectric p .r p 4 to powerhouse and returning
it to the r4vqr at a .!pqgn eOW certain lower riparian lands was a proper
basis for condemnation proceedings. 521/
This legislation at dne time prevented the use of uchi condemnation to
interfere with any mill c ,power g.pant. in operation or propeps of construction
-or the taking of "!water -owers developedd or undeveloped," with adjacent
lands necessary to^the! .develppm ent Butby g tue of amendment n 1923
.and 1925, .such !water :'owers" or mills (except for operating cotton m11s or
certain other water, power-s actually in; use oror, prr perty held tp
augment sucac ua use),i may condepned py an electric powr company
i by showing t~at sj.q taking "y be gratly more to .ehe benefit of the
-public" tan et continued e tene oe oeership

..; Th e 4e 'o; y' the majo t opi3nioen; a_ .aj AS 1 idia ated ad
that the exception in the original legislation was intended toprevent the
acquisition of all Qf,the State!'s y4aable water pQwrsites ,by7 oe r more
of the larger concerns. He has also noted that legisaltion originally
enacted in 1907 enabled companies organized as street and interurban rail- to o accomplish a there was nBo Axctio at
S-, legi nation. 2/ But such an exception has sine been added;

52 antahala Power 'and Ligh6t o. V, Mtoss, 220 C,. O'.I, 1 S., 2dc 10
16 9"N. Rie Ite ban .Co, v ea rrtill. nd r Co.,
1 47, 66 S.E.; 2 5 (13935; other decialone in an ca'e i '80 S.E.
398 (191 and 8 S.E. (916); affirmed in 2~ Up. .c0 '(1917), '
23 ., se, ~~ 60-13.

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Milldams and Related Purposes. Legislation dating from the early

colonial period currently provides that a riparian owner who has land on only

one side of a stream may bring an action akin to condemnation to acquire

up to one acre of land on the opposite side which may be needed for the

erection of a "water mill". 524/ The proposed mill may not be built, however,

if it will overflow another mill, take away houses, gardens, etc*, of the con-

demnee, or "create a nuisance in the neighborhood," Three persons are to

be appointed (one each by the condemnor and condemnee and one by the local

court) to view the premises and determine the amount of compensation due

the condemned. The person who is thus permitted to condemn such land "shall,

within one year, begin to build such watermill, and shall finish- the same

within three yearsj- and thereafter keep it up for the use and ease of its

customers..,otherwise, the said land shall return to the person from whom

* it was taken, or to such other person as shall have his right, unless the

time for finishing the mill, for reasons approved by the Court, .,be enlarged,"

Several of the watermills which were built with the aid of such legis-

lation are undoubtedly no longer in existence or being used, so that the

ownership of much of the lands condemned.has probably reverted to the

original owners or their successors. Such condeination powers probably are

only for the benefit of public, not private, mills. 26/

524/ N.C.G.S. sec. 73-5 to 73-13.
M5/ A somewhat similar time requirement was included in legislation p-ro-
posed in 1955. See Legislation on Water Rights proposed in 1955, post.
526/ The Court has indicated that a private corporation which is allowed
* to condemn lands to erect a mill "enjoys a prerogative franchise because
of some powers or duties which it is to perform for the public, and to that
extent is quasi-public." Bass v. Roanoke Navig. and Water Co., ill N.C 439,
16 S.E. 402, 407 (1892). Also see NC.G.S. sec. 73-12 and some milldam
cases discussed under Balancing of Interests, Equities, or Conveniences,

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Publitc mil;Us t e defined .-by. statute as those which grind. for a. toll, and
SRat .serve any and all i Stoers to theextent that water is available there-
for exceptt, that the miller may, first satisfy hts own needs). Maximum
limJtations, are imposed i tolls charged,. :

-. Other legislation. rovdes for, condeinnation proceedings haling somewhat
broader application. 27 .This provides that any ripaianwownler desiring to
build a watermill, rto eqrxney water .across: the lands of another through a.
mzlLrace, etc., to: build ,a.raldam whih :would flood: another's land or to

raise: :lldam alre4a4y built,I may. being an action .akin to condemnation to
, acquire within. limitationsW,:any lands needed therefore ."Three: disinterested

perapn. shall serve as. jurqso. to. determine the permazent damages to lands
takeen -or, overflow. g28/ The proposed action shall be refused upon grounds

similar. to _those, mentipnt4a-bovem but nothing Iis, said,Asboutd what o'appen
qnce tthe mlldaw,, r., ttC&e azr no lAonger used for- mill -purposes, .Persons
.taing advantage of the above statutory pro iions are givehi8eraairt

measures of protection against other mills being built close to them i the

same- stream. (See Instances Where Pior. Use,; May Receive Preferential Treat-

ment, ante ) In addition to such protection, and rights. to flood lands'.
for wbich. damages, are award there, is another, small me asue of protection

as against other riparian landowners aWong the stream -ho.e'water rights .
may be infringed. It* is provided that anyone who may-be -Ajured by, the':.
"erection of any gristmill, or mill for other useful purposes, 'may bring
,an action. However, if apnon4 damages are awarded in an amount less

/ I... N .GS. sec. 73-3, to 13k .
; Anty.beait4; received .y ,the condeinee are to be deducted from- the
damages, assessed. ,NI.C.G.S,.ee0. 73-18 .
/ N.C.G.S.; sec. 73-25 to 73-28,

S- 209 -
than $20, this precludes any further right of action for a period of five

years, if the mill is kept up during that time, unless the damages are in-
creased by raising the water or otherwise, 530/

The bulk of these statutory provisions appear to have been initially

enacted, in substantially similar form, in Prov. Stat. 1758, Ch. 5. That
Act was entitled "An Act to Encourage the Building of Public Mills and

Directing the Duty of Millers," Various modifications of the legislation

were incorporated in Laws, 1777, Ch. 23, and in later years. The 1758 Act
provided that no one could build a public gristmill without an order from

a certain local court. Subsequent legislation has not expressly so required,

although it may have encouraged several millowners to invoke its condemnation

provisions for their own protection. Rights in and to use millponds created

with the aid of this legislation for various purposes are discussed under

Artificial and Developed Watercourses, ante.

Other legislation provides that anyone using a stream "to propel

machinery" may in the event of a break in its banks enter on another's land

to repair the same, but must pay for any assessed damages. Permission to do

so is to be secured from the clerk of the local superior court, who is to

530/ The Court has noted that prior similar legislation removed the common
,law right to successive actions for damages in such cases, unless over a
certain amount, and that a provision for awarding annual damages which could
generally bind the complainant for 5 years, was equivalent to granting the
Smill owner a lease for such period on payment of the stipulated compensation,
Eason v. Perkins, 17 N.C. 38, 40 (1831). In Thomas vo Morris, 190 N.C. 24,
129 S.E. 623, (1929) the defendant had acquired the right to flood upper-
lands with a milldam and pond, first by a license which was revoked and
then by condemnation proceedings under the milldam statutes. The Court
stated that the failure of the owner of the lands flooded to request an
A additional 5-year assessment of damages at the end of 5 years did not
necessarily affect the defendant's right to continue to maintain and use..
the dam.

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appoint 3 unrelated and disinterested. freeholders, to determine the damages,
Advance notice must be given the condemnee as required, and appeal may be had
to the superior court. ''..- .:, :-. .

MHtnin, .Legislation .provides that:, AnI/person or body corporate
engaged. or about to engage ina mining. 'who may find, it necessary for the
furtherance :of his operations to convey water either to or from his mine or
Smines over th, lands of any other pe pon or persons, may mike application

,by petition in writing to the clertKof the Superior Court of the o yunty in
which the lands to be affected or the greater part are situate, for the right
so to convey such water, The owner of the lands to be affected shall be'
nade a party defendant. u.32/. The proceedings are similar to those for
acquiring opposite lands in order to build a mill on a stream, discussed
above. On payment :or tender of the-.damagesaiassessed the 'petitioner may'
proceed to lay ditches, drains, etc,i; across the defendant' s lands for .
such purposes. (The petitioner's request may be refused "for good cause.")
t '.t is .grestionable, however, whether the water may be lawfully used on non-

riparian -lands, particularly. i.: it results, in substantial ;damage to *4
riparian owners below, <(See. Definition of Riparian Land and Use of'Water |
on Nonriparian Lands, ante.)

irai-age: ;,. Legislation dating from 175~ provides'that special condie- -
Snation proceedings may be employed to cut a canal or ditch, o 'to erect: a'

dam, through or .upon the lands of a,person owningg pocosin, swip,
or flat lands, or owning lowlands subject to inundation" which cannot bther-

wise be" convenjetle y drained; or embanked so aS to drain dff or dai out the

531/ N..o.So sec. 77-8 and 77-9.
/ N.C.G.S. sec. 74-25. This legislation was discussed by the Court
in McKinney v. Denee'r 231 N.C. 540, 58 S.E. 2d. 107 (1950).


water from such lands."

However, "without the consent of the proprietor, such canal, ditch, or
embankment shall not be cut or raised through or on his yard or cartilage,

nor be allowed when the same shall injure any mill, by cutting off or

stopping the water flowing thereto; nor shall such dam be allowed so as to

create a nuisance by stagnant water, or cut off the flow of useful springs

or necessary streams of water, or stop any ditches of such proprietor when

there is no freshet." 533/

Similar condemnation proceedings may be used to obtain the right to

drain into the canal or ditch of another person, on certain conditions,

if its safety or utility will not be impaired.

Levee or drainage districts are empowered to exercise condemnation to

acquire rights of way or outlets over lands outside (or excluded lands

within) the district. (See Levee or Drainage Districts, ante.) 3_/

Other legislation enables any person, firm, or corporation to cut a

drainway through and leading from "any well-defined swamp or lowlands"

on obtaining the written consent of a majority of the landowners owning

533/ Costs of repairing such canal or dam (unlike several other types
of dams) may be apportioned among and assessed against the benefitted
landowners against their consent. Special procedures for such purpose are
provided with respect to a canal dug along "any natural depression or
waterway and maintained for seven years," which is presumed thereby to
become a "necessity." N.C.G.S. sece 156-1 et. seq. See also sec. 6-22
Concerning payment of court costs in condemnation for drainage purposes,
as well as for milldam, power dam, or public water supply purposes*
53 / N.C,G.S, sec. 156-57, See also sec. 156-65. Certain powers of
condemnation have been included in special charters granted by the Legis-
lature to various corporations. In Williamson v. Canal Co. 76 N.C. l78,
1,81 (1877), 78 N.C. 162 (1878) the Court discussed whether a canal
Company's charter to enable it to drain certain swamps gave it the power
to condemn the right to thereby cut off the flow of water in a watercourse
as well as to obtain rights of way, etc. for its canals or ditches.

212 -

3/5 of the lands therein, Proceedings in the nature of condemnation may
be employed to cut across the lands of unwilling landowners* Any

damages in excess of theassessesd benefits to such lands kmst be compen-

sated, g3/
Related Proceedings, '

emergency Water Supply. By virtue of legislation in 1955, any
county, city, or town may request the newly-created State Board of Water

Commissioners to investigate and declare that "the needs of human con-

sumption, necessary sanitation and public safety require emergency action."

36/ If the Board so finds, it shall conduct a public hearing on this
question and also to determine the source of relief water' after giving

3 days written notice to "any persons having the 'right to the'immediate
use of water at the point from .which 'sUch water is :proposed to be

diverted." After determining the emergency and the source of, relief

water, the Board shall notify the Governor who may declare a water

emergency in such area, not to exceed '30 days 'in duration (although any

number of successive emergencies may be declared upon the Board's

request). No such emergency had been declared, however, as. of August 1,


Whenever the Governor declares the existence of a water emergency
within any particular area of the State, the Board may authorize any

3J/ N.C.Q.S. sec. 156-26 et. seq. Conversely, where assessed benefits
exceed any damages, the difference may be recovered from unwilling land-
owners.. Among:-other powers of condemnation held by various State or
local agencies for various purposes, the State's Utilities. Commission
may employ condemnation tosecure rights-of-way or other necessary rights
in order to make waterway improvements by. the use NC. see. 19- l.
536/ N.C.G.S. (1955 Supp.) sec. 143.317 et. seq.


213 -

county, city, or town in such emergency area to divert water, at least

from "a stream or body of water," sufficient to take care of the needs of

"human consumption, necessary sanitation and public safety." Temporary

Water lines may be laid across any lands, as approved by the Board. Any-

one making such an emergency diversion or laying temporary water lines

"shall be liable to all persons suffering any loss or damage" on account

of it (though presumably only to persons whose legal rights have been

infringed), and shall be required to post bond for this purpose.

While this is somewhat comparable to the exercise of condemnation

Powers, it should be noted that the emergency diversion and laying of

water lines may be done (as authorized by the Board) prior to any payment

of compensation therefore. Those who suffer any damage therefrom possibly

may have to bring legal action in order to recover money compensation.
Such emergency diversions of water may continue only during the

emergency period and shall not be permitted in a subsequent year unless

reasonable plans have been made, and acted upon with due diligence, to

eliminate future emergencies by adequately enlarging one's own water

supply, Furthermore, no such county, city, or town would be eligible to

make such an emergency diversion if it had not reasonably complied with

Sany recommendations made by the Board for restricting and conserving the

use of water, or for increasing its water supply, on being notified by

the Board that a potential water shortage or emergency was foreseen.

The Board has the authority~'*o make such reasonable rules and

regulations governing the conservation and use of diverted waters within

the emergency area as shall be necessary for the health and safety of

the persons who reside within the emergency area; and the violation of

such rules and regulations during the period of the emergency shall


214 -
constitute .a misdemeanor punishable by a fine of not more than-np: thousand
dollars ($1,000) or impriso~p t for notmore than pne year or *both with-
in the discretion. pf the co.urtc,,provded however,, that before such rules
and regulations shall become effective, ,they shall be published .in, not

less than two consecutive issues, of not. less -than. one newspaper generally
circulated in the emergency. area... Thi could mean that such regulations

myay be imposed with respect to the use of all !.diverted waters" during
the emergency area and period, .nclung watFer diverted for rr rigation
.and other purposes. If it does, it4 is conjectural .whether any reduction
in such uses of water ordered by ~he Board .would needt.o be conjpenqated
by the benefited county., city or town.
Permanent Damages, The awarding of permanent damages has been
considered by the Court to be akn ,to cQndemnation. Under, either pro-
cedure permanent damages or condeLnation-the one who, 1.s been;making or
is seeking to make an otherwise unlawfl use..of water, .y be. granted the
right to continue and/or,-begin. such use, on. payi for. such: permanent
damages as may be awarded in,,the, proceedings. 537/ ,
An ordinary legal action may be converted into an action, fo p r-
manent damages by the consent of both or all-parties in ,4terest. 8/
No one ordinarily may be involuntarily forced into .such an arrangement,

/ Clinar v. Town of Kerns filie, is;'h.C. 74, 3 S.E. 2d. 267, 270
(1939); Geer v. Durham Water CQ., 137, .s.C. -349, 37 S. E.475: (1900); See
alsE Eller v.' Board o Educati6n of Buncombe County W h'N.C. $84, 89.S.E.
2d. 144 (1955)., In Lassiter v. Norfolk and C.. J. Co., 126 ,,C 507, 36 S.E,
48, '9 (900)i the Court said that the leading case upon the subject of
permanent damages is Ridley v. Railroad, 18 .No.C. 996-.,23 S.E. .730 (1896)
:I "here apparently for the first ime iii this state the rule is distinctly
enunciated and defined.!' It is said ,to have been further developed. in the
cases of'Parker v. Railroad Co., 1:''N.C. 684, 25 S.E. 722 (1896); Beach
v. Railroad Co., Nichols v. Railroad Co,,:. 120 N0C. 46, 26 S.E. 643 :(1897),
and4fobctt' v. Railfrod Co., 129 N.C. 211," 32 S.E. 681 (1899).
538 See Forest City Cotton Co.v.,mills, 219 N.C.. 279, 13;S.E.:2d.
/ ^7Tl9Ul). T

m 2159

except where ,the one who as being sued poasseses condemnation powers to

do the act complained *f in this event, either of the parties may demand
S:that 'any damages .be assessed on a permanent basis. -39/ This rule some-

ttimes also. hase :ben held applicable to a case where protection of the

S' public interest is held to require the continuance of an otherwise unlaw-
: ful use -evlen though the water user has no condemnation powers for such

purposes. 54/
..The Court has held, however, that the assessment of permanent damages

r ,,could not be required'as a matter of right in a case where a private indi-

vidual Mad no condemnation powers& t: maintain a dam, because the con-

tinuing damage was :caused by a break in the dam 'hich could be repaired

at any timeok Th: e .Court indicated tit petza~ient damages cold be required

only when the "source of the injury is its nature and':ill

* t continue Aoo be productive of injury independent of any subsequent wrong-

ful aot. 5 1/ One example of' such an injury is that resulting from the de-

taining, diversion orponding back of water through-the construction of

Sa permanent-type concrete dase. 2/

57 Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E. 2d. 267, 270
(1939). ..>. ... ..
54/ See, e.g., Geer v. Durham Water Co., 137 N.C. 349, 37 S.E. 475
f(l-zz) discussed unde-r alancing of Tnterests, Equities or Conveniences,
5L/ Jackson v. Kearns, 185 N.C. 417, 117 SJE, 345 (1923).
" GiS/ Such a dan was involved!ik*Bruton-v.) Cakrolina Power and eight Co.,
S 7 21NC. 1,:6 S.E. 2di 822 (1940) where permanent damages were awarded.
The Court stressed that it constituted a continuing nuisance to a lower
S* riparian owner. Such a dam apparently also :was involved in Geer v. Durham
Water Co., 137 N.C. 349, 37 S.E. 475 (1900) where permanent damages were
awarded for the diversion and use of water by a city with the aidC of such
Sdam even though it had no condemnation powers. But the degree of perma-
.n nance of the damage was aot considered. See also fTesener v. Henrietta
h ills Company, 209 N.C, $15, 184 S.E. 535 (1936) and Jaidsen v. Kearns,
S N 18 N..,417, 117 S*E, 345, 3b7T (1923).

:; he Court' has eanmotated the prriaiplethat wheree theiriSawtes are
- lby reason of structures or donditiond peanneta i their nature, and their
.existence and a~i;nte ance j guaTrateedo, protected ty the powe-'of emi-
nent. domain or because the interest of Aiti public :therein Ma of such an
.-..exigent nature that right of abatemes zt the instance of an iadfvidual is

of, neqeO"Sty denied,:1i Ui open to- itheir plaintiff dr defendant to demand
that permanent damages be. awarded." L3/ o:

T:he GCout In.: 9ose in 19i W held-.tthat wheipe: peuana t dattiages had been
Sawarded for- daagea o to a lower. riparian owner's terry by theolcristruction

..of a- power dam, *hich obstructed the flow, .t~is: ordinJaril T Uld preclude
V.Y;y; Lgrater :.eovery. for' alleged damages tp, the : same lower. Irparian owner' s

S land a type of injury: ada -shzo ld have:t&eei antcipted and recovered
.. .for, in the previous action The Court' held, howverei, that this did not

a ; aret de a later lawsuit for any later damages to his lands and crops
S caused by. te negligent operation. of the blower 'dama during. flobd: tifies. 4/
,:t. would appear. that. the types.of legal actiona., r ddagesa tn whieh
a later recovery of damages might\bae either: ,4ritted or- precluded in some
cases may depend at least partly upon the particular wording of the Court's
decree awarding permanent damages and granting an easement to., ootinue
certain actions. .A/ Put the Oouwt i4 a aee i1936 held thai where

53 Mloan X i Town oft-Mooresville323 LeC.JF98f 75 S&. 2d 7. 328 C
(19531) quoting bhodes. Q. Gity of DTho1i6, iC, 679,p 8 SL 938, 939
-. ,. Bruton V. Carolina Poe i and 4 ght.i Co., 217 NC. 6 S. 2d,. 822,
.- / :In a case in 1901 the. Court held that the payment. of so-called
"permanent damages" lwhio h had been-assessed by. arbitrators fbr po aidng
.back- watqr in -a stream with a. imlda did not provide an easement to con-
,tiuee,to .poad back- the-water beyond a fiytaear. period for jwich annual
damages were asessed (as it would if the special condewaitio proceedings
for milldams, described above, had been employed. The Court concluded
that the award of "permanent damages" in this case was not so intended and
contemplated the removal of the dam at the end of the 5-year period, which
was not carried out. Candler v, Asheville Electric Co., 135 N.C. 12, 17
S.E. 11i (1901).

217 -

permanent damages were assessed for ponding back water with a dam owned by

a textiMle miller the lower court's judgement "must be modified so as to

give and grant the defendant, its successors, and assigns, and easement to

back water on the 20 acres of plaintiff's land damaged by defendant, as
found by the jury." 5&6/

The Court in a recent case (in 1950) approved an award of "permanent

damages" on account of a city's pollution of a stream to the injury of a

lower riparian farm owner, together with an injunction against further

pollution of the stream with untreated sewage, although the proper dis-

charge of treated sewage was allowed to continue under the terms of an
easement deed which had been granted by the farm owner. The city contended

that it was inconsistent to require it to pay permanent damages and then
not to permit the discharge of untreated sewage. But the Court construed

Sthe award of permanent damages as not providing any easement to discharge

untreated sewage. J7/ It noted further that, by virtue of N.C.G.S. sec.

130-117, the city would have no right to so pollute a stream which at

some lower point furnishes a public drinking water supply. (See Pollution,

ante). But, it was not clear whether this was such a stream. 8/ So the

significance of the decision in this case appears difficult to measure.

While municipalities, water authorities, and perhaps sanitary

districts have condemnation powers to acquire necessary water rights

546/ Teseneer v. Henrietta Mills Co., 209 N.C. 615, 184 S.E. 535, o40
1k (1936),
l 47/ The Court conceivably was considering "permanent damages" in a
way similar to the damages assessed iri Chandler v. Asheville Electric Co.,
Sante, or in Bruton v. Carolina Power and Light Co., discussed above. The
Court noted that the injunction was intended "to prevent the infliction of
additional injury," Veazey v. City of Durham, 232 N.C. 429, 59 S.E. 2d.
L29, 430 (1950). Compare* Oates v. Algodoh Mfg. Co., 217 N.C.o 88, 8 S.E.
2d. 605 (1940). "
e8/ Veaey v. City of Durham, 232N.C. 429, 59 S.E. 2d. 429 (1950);
earlier decisions in 57 S.E. 2d' 375 and 377. Cited with approval in
McLean v. Town of Mooresville, 237 N.C. 498, 75 S.E. 2d. 327, 328 (1953).

-*y~~~~ ~~ 1 ______ ^ ______ *"t"-

- ----

` 218-
(as deqoribed abow~) 9sah ag~erl do not .necessarily~ased .to: be-eeercised,
,jpo compensation pauii, to have their -benefits;' Fory having. such powers,
when such crgan.sati ons are s.e'd And found liable fo-r et infringement
.: anoth er' a'water. zhts, they often.may demand that-permanent damages
be awarded and the organization granted an seenent to: continue such use,

-akin to conde mnatiop :jI/ t burden of action ray Uhrefore be thrown
upon those whoomay suffer damage. / : Thit nay ,smetimes -be leas costly
to: schi an orga i.ation th-n i it-purch~ es ineoesary*ster rights or
Exercises its condemnation power (apd- pay!- oom enstin Tfor bringing
osed and unusedd water; rights) before- taking water frin s.aaoures. .where the
S, rights. qw others would e infringed., But' i .ighti iy-.lo-~tSb rntually

e morep costly to await sLtph-' lawsuits. if several additional ase:s of the
-. waters in question ar, later -made by otheras:and this enhances the

M.arket. value of eitproperty,. with respect to which several of them
S may bring auit: for ;damagesl, (See Determination of-Amount ofCompensation,
Sbl4o) g moreoverr .by purchasing or condemning seeded water' rights at
the .outset a determination of ,the rost. :of acquiringineeded water rights

may. be .ade, before. taking ,,awer ..roim,.:-ay particular, asurced '
The Court -bay, %4;a sto.i nooA abandon condemnation proceedings
after- condea n wtic was beegun and a determination of damages had been made

by the commissioners s-o ;:g as tiere. had not, yet been. trial or final
judgment and it had not acted to take possession of the property con-
demned'" l/ But in another case the Court held that a railroad could

S s/ In the case of, after authorities,. it, w.ul.. see ta that the Court
prpocedings, might need be, de played. until the authority has requested
Snd obtaLned a determination by .the., State Board of Water :Commitaioners
regarding whether the authority should,.be ,allowed t "egerciseo OCndebnation
,powers for such purposes.
:. :.,Furthermr a eacept for Water. Authorities, prescript ive rights
Might eventual be acquired. to.j onntipe Iuch sea as againstthose who
Sot bring suit; agaAinst such se,: (Se, Prescriptive Rights,. post) 40-
5/ In re Baker, 187 N.C, 257, 121 S.E. L45 (1924), See N.C.G.S. sec.19

219 -
not abandon its condemnation of certain property without the property owner' a
consent after a final judgment permitting the condemnation had been made in

the ease. The Court n6ted that the condemnee had acquired certain rights

by virtue of the judgment and that to allow the railroad to back out would
inot be in the public interestt 51/
Determination of Amount of Ccipensation.

General legislation with respect to condemnation provides .simply for
compensationn which ought justly to be made." g53/ Except as may be modified
by general, special, or local iaws~~or charter, the following general rules

have been applied by the Court. The applicable rules differ somewhat in
.- cases where land is condemned entirely or in'part for a permanent and
exclusive use rather than merely where some burden is placed upon another's

land, such at, to diminish the flow of a stream through upstream use.

In a&ease in 1923, where nds a power

plant, the Court held that where land, is t.ken by condemnation "the measure
, .K^" t Cort *' r---"--heldtha hee ld. i e, '' :~--
f .the fair market value, taking into consideration any

and all uses or purposes to' which thA- nrnprty i ra nabl adapted and
might, with reasonable probability, be applied. The test is the fair market
__~_--- -- ---- ~- -
552/ Johnson City So. Ry. Co. v. So. and W.R. Co,, 1U8 N.C. 59, 61 S.E,
68~3-687-688 (1908). But see $tate v. Hughes, 20? N.;,763, l6:64 S.E, $7
(1932), construing legislation Which expressly gave the State te, right to
abandon condemnation of land for park purposes when the award of damaes
i-s so excessive as to make such condemnation undesirable.
Sja/ N.C.0.S. see. i0-17. Just compensation also has been" eld to be re-
quired under the Federal and State constitutions. Eler v. Bord of
a Education of Buncombe County, 242 N.C. 58M, 89 S.E, 2d. 144 (1955). Sale
v. State Highway anid public Works ComM., 238 N.C. $99, 89 S.E. 2d. 290 (1955).

1_ ~1~1~_

.. 220 -
value of the, roTery" '.-". 4
In cases where th, property is merely burdened or damaged rath~eV.han
n entirely, the Court as indicated that the measure of compensation
is the difference between the ar, make va.ue.F onp e property bfore and
after such "taking is same general rle has been applied Zg eases
where permanent damages have been assedsed. .j:/ .... :, -' : .: .;. ;
I : a case in 1941, nvoling condemnation of a ight .to divert a
stream s entire flow wit a, ~and conduit for hydroeectic purposes and
return it to the. natural qchan(, below r
lands, as well AS a rigt of way across such la.da, ,the Court "aid'; ,
"The market value of property is the yastre ck ky w)4h a g O U-
Sstion for the ikifhg of lahd or any interest therein is to be
measured and market vaue 'of ppoper ty S there p3ice w w 4t ,
S" A'' .wil brin whe it. offered for sale by one who desires, but
is not obliged to pel.. t and is bough:by one .whOp i under-
S no neeesity! of hai "it" In estimating its value all of
the capabi" ies of Fthe ty .' d, all f, the pes. t which
i ft" iigybe 'applied, "or for which it is adapted, which affect
.its value in the a.ce.t a., to be considered, a..d no .l)re-.-
: t he conditionn it i5sin at the time and the use to which it
is then applied .b the owner...The just, oaenes oA rule., :
merely rquifes "hat 'he' owner of the property taken shall be
paid ,for what", is taken frpl h ,'j;t, deal. with perso.nae pnt/
S' lith -tracts -o land," And the question is, What has the owner
lost? ,not, What has the ake, gai.ed?,.. Neither.the. value to: q

S1 55enn ee Power Co V HiwaspeeRiver PW?^.O,;9 1861T,c.
19, S, ion in 123 S.E., 31,- dsirtred by
.'- S. iiSuprme C~i ot. for ladk Q~igdigci Q.U. .5 S. 6,(1924),. ee
. RoBaUe'e v. Cit of K ehressvo C., 123 64. 87 (19.E i4 .
S/ Oat v.s A PonerA oas .o22(9 W,C,. 20pd. .7 S.E, 24
0r eant. MIght QQ, 174 NS,. -7, 93- S.
C oeA2 io o has been helh to be Ith.4date eaUZ
condea prQceeingS 1are itute4 rather -the.,earlet girAep if
any, of actual sidn '6afi ax er se 'proerty o, r4ihts,. Weasern 6aro&4na
-Pbwer co, v. Hayes, 193 N.C. 04;'136 S.E. 353 (1 27 ) Dukce Power Co. v.
Tomms 118 F 2d. 443 (c.c.A. 4th) (1941); Empire v. United States, 131 F.
(c.c.A. 4th) 481 (1942).
Clinard v. Town of Kernersville, 215 N,C. 74, 3 S.E. 2d. 267
(1 )j Oates v. Algodon Mfg. Co., 217 N.C. 488, 8 S.E. 2d. 605 (1940)j
Teseneer v. Henrietta Mills Go., 209 N.C. 615, 184 S.E.-535, 540 (1936).

221 -

the condemnor nor his necessity can be taken into con-
sideration when fixing the value..the highest and most
profitable use for which the property is adaptable and
needed or likely to be needed in the reasonably near
future is to be considered, not as a measure of value but
to the full extent that such prospect or demand for such
use affected the market value at the time respondents were
deprived of their riparian rights." _j

In case in 1924, where permanent damages were awarded for damage

to a pl action caused by the withdrawal of artesian groundwaters from

adjoining property by a city, the Court held that the difference in the

market value of the plantation before and after the sinking of the city's

wells wouldbe the measurement of damages and that a wide range of e ence

bearing on this question could properly be considered, suggesting that

"the value of land is largely a matter of opinion derived from a variety

of circumstances." Matters held to have been properly considered included

S the effect of .the loss of good artesian water on the health of the tenants

or other persons living on the plantation, the loss of the use of the

plantation for dairy purposes, the lose of the possibility of irrigation

S of crops (even though it was not clear that it had been actually practiced

except for a home garden), and possibly even the reduction of crop pro-

ductivity owing to a lowered water table. (See Groundwaters, ante). The

Court held that evidence as to possible future uses and developments of

the plantation, based on the continued flow and use of the artesian waters ,

5/ Nantahala Power and Light Cc. v. Moss, 220 N.C. 200, 17 S.E. 2d..
10,13-15, (191). With respect to future rather than past losses or damages;
it would seem .that -their present worth or discounted value might be
considered in determining their effect upon the fair market price, as was
done with respect to injuries from an auto accident in the recent case of
Faison v~ Gibb, 241 N.C. 303, 85 S.E. 2d, 139 (1954)o

a---r-.- _Ilrx~-r~-il---*-~-EI_-r--r~_~-------r-- -

222 -
thereunder, cold properly b6 considered An award of ~,000 grymanent
damages on account of the lose in market value of: the 581i acrwep.antation

was upheld. / ---

Th E'fcotended that good or better.water: could be obtained by the
farm owner from the city artesian wells, at a price, and hence he suffered
no damage Evidence of this nature was admitted and apparently considered
by the jury, with the .Court's approval, but the jury nevertheless awarded
substantial damages. 9/

The failure of a landowner to make some practical use of a watercourse
flowing on or by his land or of groundwaters below, may tend to reduce
the amount of compensation he obtains in condemnation proceedings or an

action for permanent damages, as the loss of future prospective uses of

the property may be discounted to some extent. (See Time of Use and Effect
of Nonuse, ante,) But the Court has held that the failure of a riparian
landowner to make any practal use of the stream which flowed through
his farm would not preclude his recovering permanent damages for any loss
in the value of his land caused by the upstream use of the watercourse to
furnish the water supply of a town, which diminished the flow. An award
of $100 damages was approved, 5. /

ef IAL.Gitly -of inaton 1888 NM.C..( 1 123-S 21 -
39/ ousemvrTf of Kston, lYo ,. 2, 484, 0-"
(192l), Consideration of certain offsetting benefits has also been
allowed ii some !nonwater condemnation -cases. See, e.go., Staney v. .i :
Burnsville, aB9N.C. 39, 126 S.E, 103 (192)) Gallimore v. State Highway
and Publib W Orks Commi 2'll:NC- ; .350 85: SE- 2d. 392 (1953).
50~ Smith v.- Morganuown, .187 4ICC 801, 123 S.E; 88, 89- (1924).

'. *. .'


223 -

In one case Sh,000 permanent damages were awarded where the diversion

of water from a wateroourse by a town required the shutting down of a lower

riparian owner's mill and consequent loss of value to his land. 61/

In an earlier permanent damage case the Court at one point incidentally

S suggested that there should be no liability for diverting water to water

locomotives on riparian land except for some legitimate use being made of.

the water. /62 Such a rule would seem questionable and perhaps unlikely

to be followed in other permanent damage cases.

The...Court does not appear to have expressly considered what effect

should be given to the possibility that the exercise of one's riparian

rights might become more restricted as more lower riparian owners seek to.

make use of the watercourse. This might be particularly true as to rights

of consumptive use if the rule of "reasonable use under all the circumstances"

were applied, which is problematical. (See General Development of Riparian.

Doctrine, ante),

The more or less temporary taking of another's property has sometimes

been done in milldam cases where annual damages may be assessed. (See

Detention or Obstruction of Waters with Dams, etc., ante.) It may also

occur, in effect, under the emergency provisions. included in the 1955

legislation discussed above. The temporary loss in value might appear to

be the proper measurement of compensation in such cases* However, in some
cases, the Court has denied an award of permanent damages because the damage

complained of was due to a cause "that might be removed or a nuisance

t;at may be abated" and indicated that the measure of damage in such cases

561 An additional $6,000 damages was awarded on account of pollution.
Cook v Town of Mebane, 191 N.C. 1, 131 S.E. 497 (1926). In a milldam case
where annual damages,were assessed the Court held that the loss of business
at another mill which was adversely affected could be considered as an
element of damage. Hardin v. Ledletter, 103 N.C. 90, 9 S.E. 61l, 6413 6 a.
2/ Harris v. Norfolk and W. R. Company, 163 N.C. 542,69 S.E. 623 (<1910).

22i -
w douldbe the diffessence in the productiven Wue, rpther-tan t. ff. ir. market
Value of the land before arid after the damage and up unt3 lt e time.of,
trial. It has 6s held in certain oases of pollution and. flooding, for .:,
example. In one oase of this c'kind the lowerourt, apparel wih the
approval of the Supreme Court, i.*icated that the- jury could also coas1de# r
any- damage. byr teaono -fnot belig aile to s.e the. pouted stream for
stock watering or- "any other usual use. ll. .:.
Following are a few miscelapeo oea nsiderationa; a(1) In a recent
case where. land was cndCemdoed for highway purposes,; the, icrt: held that
the several. alleged adverae-e effects upon the land tal : coul, not be,
recovered for as separate itw o&.dageage, but were rlevant only as ,.
circinstahoes tendiug! to show a d ui io n the overall ;ai ma ket
value- of the, property, $W/ (M),. ;an other recent. cae invol cin m-
nation of a right of iwy for .a ga, pipeline .across a farm th Court indiccaed
that the valuation of the perpetual easement thus acquired need not be,
reduced on account -of the remote possi bi~ty of itL abandonment. The
Supreme Court further Aixdicated that the lower court iadsq authority to
stipulate that the assseased damages be reduced by pertitting the condenee
to build 'a Lake over the condemned right o:c way,,but this must be .eft to
a, voluntary e agreement. eby .the. parties, : (3) In an earlier ase the
Court',suggested that i proverentsr ade n the foatabiity.of a streak~
(coaapensation.tin kind) would be a possible. -eans of compensating the riparian
holders ,of :floatage; easements which wer: "taken". by. the State .by exacting.
a toll on.. the floa:age of logsA Bat legislation perptting such tolls without
reference to any improvements was held unconstitutional, 66

.w atees Vo isgodon aHif Q., 21? N.C. 88, Og, -4 606 (19i)))s
See~also AdaeasV.. :uhrhae m and-N NR6.- Co3 .10N.. 326, 311 S., E 7, $60,(1892).
4/G QalUimnre* 7, State 1Hignhwgy and-ublic, Works, Comm,,. 211 N.ff *So, 85 ,
2d, 392, 396 (1955)o see cases cited on p. 396 regarding injury to spripg as
J.h) eldaient ofdl wg e. .- ,. (Footnote .565-566 cont. nex p0)
(F o a 4p

225 -

Use of Property or Water Rights Acquired by Condemnation, etc.

Rights in and to use ponds created by dams under the special condemnation

proceedings for milldam purposes or otherwise are discussed under Rights in

and to Use Ponds Created by Dams, ante. In one case the Court said that

the right to maintain a public mill and dam, and to pond water back upon

another's land, acquired under the statutory proceedings, is founded on the

right of condemnation and carries with it all rights incident to the prin-

cipal right, but such incidental rights could not be unduly expanded by

implication to include the right to fish or bathe in the millpond over the

upper owner's land, as such rights had "no connection with the.right to

use the water for purposes of power." &6/

This case was cited in an out-of State-Federal case in support of the

proposition that "where less than a fee is condemned, the use of the property

taken must be for and in accordance with the purposes which justified its

taking," The Court added; "and which was the basis for assessing damages."

568/ It would seem that this principle might generally apply to condemnation

of a right to divert and use water from a stream, etc.

Some of the cases discussed above, under Permanent Damages, also shed

some light on the question of rights to use property or water rights acquired

by that method,

565/ Carolina Central Gas Co. v. Hyder, 241 N.C. 639, 86 S.E. 458 (1955).
367/ Hutton v. Webb, 126 N.C. 897 36 S.E. 341 (1900).
7/ Thomas v. Morris, 190 N.C. 2A, 129 S.E. 623, 626 (1925)0
SUnited States v. Burmeister, et. alo, 172 F. 2d.(C.C.A. 10th) 478,
480-79199). This case involved condemnation for the use of land as an
aerial gunnery range. In Mullen v. Lake Drummond Canal Co., 103 N.C. 496,
41 SE. 1027 (1902) the Court held that the obtaining of a right-of-way for
a canal across another's land (it was not shown how it was obtained) was
a mere easement, extending only to use of canal in the form originally con-