Pendergrast v. Aiken
From Water Wiki
1977 decision of the N.C. Supreme Court applies "reasonableness" test to upstream property owner's nuisance claim against downstream neighbor for obstructing water flow and flooding the upstream property. "Reasonableness is a question of fact to be determined in each nuisance case by weighing the gravity of the harm to the plaintiff against the utility of the conduct of the defendant"
The rising prominence of the reasonable use rule is seemingly attributable to the increasing industrialization and urbanization of the nation. Where people are forced by social and demographic pressures to live in close proximity with each other and with commercial and industrial development, there will be, of necessity, increased conflict over the proper utilization of land. Long and Long, Surface Waters and the Civil Law Rule, 23 Emory L.J. 1015 (1974). It is no longer simply a matter of balancing the interests of individual landowners; the interests of society must be considered. On the whole the rigid solutions offered by the common enemy and civil law rules no longer provide an adequate vehicle by which drainage problems may be properly resolved. For this reason courts have responded, first with modifications of existing rules and then, when those proved unwieldy, by the adoption of the rule of reasonable use.[1]
The Pendergrast court went on (in dicta) to try to summarize the law of riparian rights to beneficial use of water as analogous to the development of the law of harm from water; in both areas, the Court said, earlier "natural flow" and "quiet enjoyment" doctrines of riparian rights had given way to a more instrumental conception of water rights:
A similar situation, demonstrating the Court's willingness to modify water law in response to social change, arose during the development of the law of riparian rights. See generally Aycock, Introduction to Water Use Law in North Carolina, 46 N.C.L.Rev. 1 (1967). Like the laws of drainage, riparian rights were early expressed in terms of the “natural flow” rule. By this rule an owner of lands abutting a stream had the right to have the flow continue through his land undiminished in quantity or quality except for such “natural uses” as drinking, bathing, watering farm animals and irrigation of home supportive gardens. Industrial use was permitted only insofar as the water was returned to the stream without substantial diminution in quality or quantity. Although adequate early in our history, this rule was soon outmoded by the needs of a growing urban and industrial society. This Court therefore adopted the “American rule” or rule of reasonable use 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.”Smith v. Morganton, 187 N.C. 801, 123 S.E. 88 (1924); accord, Pugh v. Wheeler, 19 N.C. 50 (1836).[2]
On the way "reasonableness" is tested in the case of beneficial use of water, the Pendergrast court quoted from Dunlap v. Light Co., 212 N.C. 814, 195 S.E. 43 (1938):
What constitutes a reasonable use is a question of fact having regard to the subject matter and the use; the occasion and manner of its application; its object and extent and necessity; the nature and size of the stream; the kind of business to which it is subservient; and the importance and necessity of the use claimed by one party and the extent of the injury caused by it to the other.
