Pernell v. City of Henderson

• Decision Date: 24 September 1941
• Docket Number: 161.
• Citation: 16 S.E.2d 449,220 N.C. 79
• Parties: PERNELL v. CITY OF HENDERSON.
• Court: North Carolina Supreme Court

16 S.E.2d 449

220 N.C. 79

PERNELL v. CITY OF HENDERSON.

No. 161.

Supreme Court of North Carolina

September 24, 1941

A A. Bunn, Jasper B. Hicks, and J. H. Bridgers, all of Henderson, for defendant, appellant.

Gholson & Gholson, of Henderson, and W. H. Yarborough, of Louisburg, for plaintiff, appellee.

SEAWELL Justice.

The plaintiff has for some time owned and operated a gristmill on a stream known as Sandy Creek near Henderson, a city of some 7,600 inhabitants.The city has constructed and maintains dams and reservoirs on the tributaries of this stream above the mill site, from which it pumps a supply of water through mains to the city and distributes it to the inhabitants and users through a water system in the usual way.The plaintiff claims that this diversion of the water from the natural flow of the stream has so diminished it that the value of his mill site has been destroyed or greatly reduced, and his operation of the mill rendered unprofitable.He further alleges that his injury is constantly increased by the rapid growth of the city and its increasing needs.He alleges that the defendant has expressed its intention of continuing the diversion and that it will continue to his injury and damage.

For a second cause of action, plaintiff complains that for some years prior to January 1, 1940, while he was owner and in occupation of the premises, the defendant created and continuously maintained a nuisance by emptying raw sewage into an upper tributary of the stream on which his mill was located, which sewage flowed down with the stream and entered his pond, silting and filling it up so as to greatly reduce its capacity, and causing foul odors about the mill and premises, which could be endured only for a short time, and which caused his customers to complain; and that his premises thereby became unhealthy and were otherwise damaged by the noxious qualities of the sewage, in which respects he alleges that he is endamaged in a substantial amount.

To the first cause of action the defendant demurred upon the ground that it appears from the complaint that the defendant is a municipality, distributing to its inhabitants for domestic purposes, the water it diverts, which it has the right to do as a riparian owner, without accountability to plaintiff, so long as its use for such purpose is reasonable, even though it takes the entire flow.Defendant further points out that such use is preferred by law to that of manufacturing, which it conceives to be the business of plaintiff.It demurred also because the cause of action is insufficiently stated with respect to the quantity of water taken and that left.

It has been held with practical unanimity that a municipal corporation, in its construction and operation of a water supply system, by which it impounds the water of a private stream and distributes such water to its inhabitants receiving compensation therefor, is not in the exercise of the traditional right of a riparian owner to make a reasonable domestic use of the water without accountability to other riparian owners who may be injured by its diversion or diminution."The use of the waters of a stream to supply the inhabitants of a municipality with water for domestic purposes is not a riparian right."67 C.J 1120."The weight of authority *** holds a municipal corporation civilly liable for diverting the waters of a private watercourse for the purposes of a public water supply, either with or without legislative authority."19 R.C.L. 1096."A municipal corporation will be liable for diverting the waters of a stream or watercourse and depriving lower riparian owners of the use thereof."McQuillin, Municipal Corporations, Vol. 6,...