Smith v. Town of Morganton

123 S.E. 88, 187 N.C. 801, 1924 N.C. LEXIS 404

Opinion

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.