Rouse v. City of Kinston

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Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482 (N.C. 1924).

A farmer (and former mayor of Kinston) bought a property called Caswell Lodge just west of town, and improved it as a farm by digging deep artesian wells. The City of Kinston bought an adjoining lot and also dug deep wells to supply the town. The evidence suggested that the city wells dried up the earlier wells owned by Mr. Rouse. The city defended as follows:

Defendant further contended, and there was evidence to support this contention, that the value of plaintiff's farm
had increased on account of being connected with the city water system in a material amount, and was worth
more after the city sank its wells and put in operation its water mains, and that while in fact the sinking of said
wells on its own land did not interfere with the flow of plaintiff's wells, and there was no physical relation
between plaintiff's well and the city wells, as a matter of right the city had the full and free right and power to
sink wells on its own land as it did, and to take therefrom all the water that might naturally rise from such wells
into its reservoir, and that then it had a full and perfect right, and that it was its duty, to transport the said water
into its water system for its inhabitants, in order that their health and sanitary conditions should be promoted,
and that fire protection should thereby be afforded, and that such was not an invasion of the plaintiff's property
rights with respect to his said farm, and created no liability on the part of the defendant for the use of its said
wells and the water flowing therefrom.

There was not even pumping involved, as these were artesian wells:

It appears distinctly and plainly in all the evidence offered by the plaintiff and the defendant that the water in
controversy flows naturally and without the application of artificial force from the defendant's wells into its
reservoir, and that no pumping or other means is used to extract the water from said wells, although electricity is
used to pump said water, after it has flowed naturally into the reservoir, from said reservoir into the main and into
the city water system.

The North Carolina Supreme Court rejects the 'English rule' of absolute ownership of groundwater, adopting instead the "American rule" of reasonable use after a lengthy recitation of quotes from cases and commentators:

“These assignments of error present the question as to the correctness of his honor's view that the English rule of
absolute ownership of land did not cover the absolute right to use underground percolating waters not contained
in any well-defined underground stream according to the owner's desire, but that such use was limited to the rule
applied in some of the American courts and known as the ‘reasonable user’ rule, limiting the owner the use of
such percolating waters on the premises which contained the wells. The various phases of the application of the
trial court's view are presented in the several exceptions noted in this group of assignments of error.”
The above assignments of error set forth the main contention in this case--the “reasonable user” of underground
percolating water. The issue was drawn and the contest waged over the doctrine of “reasonable use” of percolating
waters. The authorities are conflicting. We are of the opinion that the reasonable use doctrine is supported by
the greater weight of authorities in the United States and is the just and equitable rule to follow.
In 27 R. C. L. § 91, it is said, in part:
“The law respecting the rights of property owners in percolating subterranean waters is of comparatively recent
development. The first English decision dealing with underground waters was rendered in 1840, and the case
which has become recognized as the leading one on the subject was decided in 1843. According to the doctrine
laid down by this and subsequent decisions, and known as the common-law rule, or English rule, water which
percolates through the soil without any definite channel is regarded as much a part of the freehold through which
it courses as the clays, sand, gravel, and rocks found therein, and the owner, at least in the absence of malice,
has the absolute right to intercept the water before it leaves his premises and make whatever use of it he pleases,
regardless of the effect that such use may have on a lower proprietor through whose land the water, in its natural
course, was wont to filtrate and percolate. This rule was followed in nearly all of the early and in a number of
the later American cases, in the absence of express contract and of positive authorized legislation, but the trend
of modern opinion in this country is toward the ‘reasonable use’ rule.” (Italics ours.)

....

We think the American rule, adopted in most of the states where this question has arisen, the “reasonable use” of
percolating water, the correct rule. The beauty of the common law is that it is elastic and at all times fitted to
meet modern life and changing conditions when consonant with right and justice. We think there is no error in the charge of the court below, as follows:
“This rule does not prevent the private use by any landowner of percolating waters subjacent to his soil in manufacturing,
agriculture, irrigation, or otherwise; nor does it prevent any reasonable development of his land by
mining, or the like, although by such use the underground percolating waters of his neighbor may be thus interfered
with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale, for
uses not connected with any beneficial ownership or enjoyment of the land from which they are taken, if it
thereby follows that the owner of adjacent lands is interfered with in his right to the reasonable use of subsurface
water upon his own land, or if his wells, springs or streams are thereby materially diminished in flow or his land
rendered less valuable for agriculture, pasturage, or for legitimate uses. * * * I therefore charge you that, in the
absence of contract or legislative enactment, whatever is reasonable for the owner to do with his subsurface water,
he may do. He may make the most of it that he reasonably can. It is not unreasonable for him to dig wells
and take therefrom all of the waters that he needs in order to get the fullest enjoyment and usefulness from his
land, for the purposes of abode, productiveness of the soil, or manufacture, or whatever else the land is capable
of. He may consume it at will; but to fit it up with wells and pumps of such pervasive and potential reach that
from their base he can tap the waters stored in the lands of others, and thus lead them to his own land, and by
merchandizing it prevent its return, to the injury of adjoining landowners, is an unreasonable use of the soil, and
in such event the injured neighbor may bring his action for damages.”

The city lost the case, having to pay damages to the plaintiff, Rouse, although the Court allowed the City to continue operating its wells and even awarded it a permanent easement for lines across the plaintiff's property.