From Water Wiki
Private property means, in essence, that a thing (the property) is under the control of an owner, who has the right to exclude others from possessing or using the thing, and perhaps other rights associated with the thing, including the right to transfer some or all of these rights to others for valuable consideration. The state's role in private property is not often recognized by those have not reflected on property as an institution, but the state's role is vital: rights such as the "right to exclude others" are only valuable to the extent that they can be protected and enforced, and "property" requires some more-or-less agreed-upon allocation and boundaries. For many forms of property, such as land, the state plays a pivotal role in allocating, definining, resolving disputes about and enforcing agreements about all these things. For many people, land is the paradigm of "private property," yet private property rights are not and, in North Carolina, never have been a matter of absolute dominion and control over a piece of real estate. The belief that they are somehow absolute and outside of state involvement may be a good example of wikiality.
Things are even more complicated for water. See riparian rights. Professor Mort Horwitz explained the role of courts in moving to an instrumental conception of water rights and property law in his well-known legal history, The Transformation of American Law. But in North Carolina, at least, the colonial legislature had already limited the rights of real property owners, in regard to water, well before the "mill cases" that Horwitz discusses began to appear in the nineteenth century. The legislature limited property owners rights to keep their neighbors from digging ditches, in order to advance social causes and water policy deemed worthy at the time. What is arguably the state’s first environmental law, and also arguably the first stormwater-related statute, proves this point. In 1795, the General Assembly created a scheme for draining swamp lands, even over the objections of property owners whose land was to be drained. The procedure was for a property owner who wanted the drainage to apply to the superior court in the property owner’s county. The court would then appoint “commissioners”—typically local farmers—who would inspect the land and file a report with the court recommending whether and how the land would be drained, and (eventually) the portion of costs to be born by all affected property owners. There was no provision for public input into the commissioners’ work. The courts intervened to assure that a property owner who was to be charged had a day in court to contest the process, but courts rarely if ever second-guessed the report of the commissioners.
North Carolina courts, though, did follow the path explained by Prof. Horwitz. First, they never viewed riparian rights as ownership of flowing water:
The proprietors of lands along streams have no property in the flowing water, which is indivisible and not the subject of riparian
ownership. They may use the water for any purpose to which it can be beneficially applied, but in doing
so they have no right to inflict material or substantial injury upon those below them. Williamson v. Canal Co.,
78 N. C. 157; Gould v. Waters, pp. 394, 395; Angell on Water Com'rs (7th Ed.) pp. 96, 97.
Second, they explicitly acknowledge the move from earlier "natural flow" rules to a more instrumental conception of water rights. See, e.g., the discussion in this wiki of Pendergrast v. Aiken.
- ↑ Harris v. Norfolk Western Railway, 153 N.C. 542 (1910).