Smith v. Town of Morganton
| Decision Date | 31 May 1924 |
| Docket Number | 479. |
| Citation | 123 S.E. 88,187 N.C. 801 |
| Parties | SMITH v. TOWN OF MORGANTON ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Long, Judge.
Action by Alex Smith against the Town of Morganton and another. From judgment for plaintiff, defendants appeal. No error.
Riparian proprietor is entitled to natural flow of stream running through or along his land in its accustomed channel undiminished in quantity and unimpaired in quality, except as occasioned by reasonable use of water by other like proprietors.
Riparian rights are inseparably annexed to the soil and pass with it as part and parcel of it, and not as easement or appurtenant and are not dependent on owner's actual use or appropriation of water, relative to constituting property as against one diverting stream.
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 watercourse known as Henry river 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 the 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, c. 104; Private Laws 1917, c. 8; Private Laws 1921, Ex. Sess. c. 91, and the amendments thereto; that the quantity of water taken from the river was inconsequential, and that they had incurred no liability to the plaintiff.
Before the introduction of evidence, the plaintiff took a voluntary nonsuit as to Boyd, Higgins & Goforth, Inc., and prosecuted the suit against the town of Morganton.
The following verdict was returned:
(1) Is the plaintiff, Alex Smith, seized and possessed of the lands described in the complaint? A. Yes, except that portion of the 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 the defendant town of Morganton unlawfully and unreasonably and permanently divert the water of Henry river from the lands of the plaintiff, Alex Smith, as alleged in the complaint? A. Yes.
(3) If so, what permanent damages, if any, is the plaintiff Alex Smith, entitled to recover of the defendant? A. $100.
Judgment for the plaintiff. Appeal by defendant.
W. A. Self, of Hickory, and L. E. Rudisill, of Morganton, for appellants.
S. J. Erwin and S. J. Erwin, Jr., both of Morganton, for appellee.
The plaintiff contends that he is a lower proprietor from whose land the natural flow of the water in Henry river has been unreasonably diverted by the defendant, that by reason of such diversion the value of his land has been diminished, and that he is entitled to the recovery of damages. His contention therefore involves the question of a riparian owner's rights in a stream of water flowing through or adjacent to his land. Such rights are governed by principles which have been settled and frequently applied.
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...property right in any particular particle of water or in all of them put together" there can be no trespass. Smith v. Town of Morganton, 187 N.C. 801, 802, 123 S.E. 88, 89 (1924). Defendant also contends that if there is sediment on plaintiff's property there is no evidence that defendant c......
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Dunlap v. Carolina Power & Light Co.
... ... Interurban R. R. v. Light & Power Co., 169 N.C. 471, ... 481, 86 S.E. 296; Smith v. Morganton, 187 N.C. 801, ... 803, 123 S.E. 88 ... In some ... of the cases ... ...
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Hampton v. North Carolina Pulp Co.
...connection, that is, the wrongful interference with the flow of water by an upper riparian owner, Justice Adams in Smith v. Morganton, 187 N.C. 801, 802, 123 S.E. 88, 89, thus refers to the permanence of those natural upon which mankind has always depended: "Furthermore, the right to have a......
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Freeman v. Blue Ridge Paper Products, Inc.
...by an upper proprietor." Biddix v. Henredon Furniture Indus., 76 N.C.App. 30, 331 S.E.2d 717, 721 (1985) (quoting Smith v. Morganton, 187 N.C. 801, 123 S.E. 88, 89 (1924)). We hold that Freeman could advance the interests of the class members and satisfy the typicality The Circuit Court tre......