Smith v. Town of Morganton, 187 N.C. 801 (1924)

May 31, 1924 · Supreme Court of North Carolina

187 N.C. 801

ALEX SMITH v. TOWN OF MORGANTON.

(Filed 31 May, 1924.)

Waters — Riparian Owners — Diversion of Plow — Rower Proprietor— Damages — Easements—-Municipal Corporations — Cities and Towns.

A riparian owner is entitled to the natural flow of a stream of water running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as may be occasioned by a reasonable use of the water by other like proprietors, as a right, not as an easement, inseparably annexed to the soil; and held,, a city or town that causes damage to the lower proprietor by damming the stream and diverting the use of the waters for the use in connection with its sewer system and for its inhabitants, is liable in damages, though the lower proprietor may not, at the time, be using the stream for any purpose.

Appeal by defendant from Long, J., at January Special Term, 1924, of Bueke.

The suit was brought against the town of Morganton and Boyd, Higgins & Goforth, Inc., for the recovery of damages for the diversion of water. The plaintiff alleged that he was the owner of two tracts of land in Burke County through which the regular volume of a water course known as Henry Eiver formerly flowed, and that the defendants had unlawfully and wrongfully constructed a permanent dam across the river a mile above the lands of the plaintiff, had unlawfully diverted the water from his land by means of underground pipes, and had wrongfully obstructed the flow thereof to his damage.

. The defendants filed an answer admitting that they had constructed a concrete dam across the river in an inaccessible and sparsely inhabited portion of the county, and that through pipes a portion of thé impounded water was conveyed into Morganton and there delivered to the inhabitants of the town for public and private use. They alleged that the town constructed a system of waterworks as a public necessity by virtue of Private Laws 1913, cb. 104; Private Laws 1917, cb. 108; Private Laws 1921, Ex. Sess., cb. 91, and tbe amendments thereto; tbat tbe quantity of water taken from tbe river was inconsequential, and tbat they bad incurred no liability to tbe plaintiff.

Before tbe introduction of evidence, tbe plaintiff took a voluntary nonsuit as to Boyd, Higgins & Goforth, Inc., and prosecuted tbe suit against tbe town of Morganton.

Tbe following- verdict was returned:

1. Is tbe plaintiff, Alex Smith, seized and possessed of tbe lands described in tbe complaint? A. Yes, except tbat portion of tbe three-acre tract embraced in a deed made by plaintiff to L. A. Chapman, as per said deed on public registry, Book B-5, p. 39.

2. Did tbe defendant, Town of Morganton, unlawfully and unreasonably and permanently divert tbe water of Henry River from tbe lands of tbe plaintiff, Alex Smith, as alleged in tbe complaint? A. Yes.

3. If so, what permanent damages, if any, is tbe plaintiff, Alex Smith, entitled to recover of tbe defendant? A. $100.

Judgment for tbe plaintiff. Ajopeal by defendant.

S. J. Ervin and S. J. Ervin, Jr., for plaintiff.

W. A. Self and L. E. Rudisill for defendant.

Adams, J.

Tbe plaintiff contends tbat be is a lower proprietor from whose land tbe natural flow of tbe-water in Henry River has been unreasonably diverted by tbe defendant; tbat by reason of such diversion tbe value of bis land has been diminished, and tbat be is entitled to tbe recovery of damages. His contention therefore involves tbe question of a riparian owner’s rights in a stream of water flowing through or adjacent to bis land. Such rights are governed by principles which have been settled and frequently applied.

Earnham says tbat a comprehensive statement of tbe rights of a riparian owner is tbat be has a right to have tbe stream remain in place and to flow as nature directs, and to make such use of tbe flowing water as be can make without materially interfering with tbe equal rights of tbe owners above and below him on tbe stream. Furthermore, tbe right to have a natural water course continue its physical existence upon one’s property is as much property as is tbe right to have tbe bills and forests remain in place, and while there is no property right in any particular particle of water or in all of them put together, a riparian proprietor has tbe right of their flow past bis lands for ordinary domestic, manufacturing, and other lawful purposes, without injurious or prejudicial interference by an upper proprietor. Waters and Water Rights, sees. 461, 462. This doctrine finds support in our decisions which hold that a riparian proprietor is entitled to the natural flow of a stream running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as may be occasioned by the reasonable use of the water by other like proprietors. Pugh v. Wheeler, 19 N. C., 50; S. v. Glen, 52 N. C., 321; Walton v. Mills, 86 N. C., 280; McLaughlin v. Mfg. Co., 103 N. C., 100; Adams v. R. R., 110 N. C., 326; Durham v. Cotton Mills, 141 N. C., 615; Harris v. R. R., 153 N. C., 542.

The defendant says “the shoal and waterfalls” have no intrinsic commercial value, and as the plaintiff has never made practical use of the stream, his action is based on an unappropriated right of user which should not be treated as a property right, but this position is not in accord with the authorities. Riparian rights are inseparably annexed to the soil and pass with it as a part and parcel of it and not as an easement or appurtenant. They are not dependent upon the owner’s actual use or appropriation of the flowing water. Waterworks Co. v. Cline, 33 L. R. A., 376; Ulbricht v. Water Co., 4 L. R. A., 572; Railway Co. v. Bancroft, 38 L. R. A. (N. S.), 526.

After considering the exceptions to the admission of evidence we find no sufficient reason for sustaining them. The questions involved have been discussed in several decisions and decided adversely to the defendant’s contention. The remaining exceptions were formal.

No error.