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Show 576 NORTH CAROLINA tary to surface watercourses will be governed by the reasonable use doctrine and the permit system as described in the preceding sections of this chapter; and that, if the waters from springs do not leave the lands upon which they originate, the landowner will be entitled to capture and use such spring waters. 3.7 Diffused Surface Waters It is unlikely that the Water Use Act of 1967 requires a permit to appropriate diffused surface water, as distinguished from water flowing in watercourses. The statutory definition of "waters" might be broad enough to include vagrant waters.61 But the point is per- haps of little importance because it will be remembered that per- mits in any event are required only for water use in excess of 100,000 gallons per day in capacity use areas. That would be roughly equivalent to twenty garden hoses running at full capacity continuously for 24 hours, which would be quite an unusual supply of diffused surface water. More important, of course, is what a landowner may do to rid himself of diffused surface water. North Carolina seems firmly committed to the "civil law" rule which it states in conventional language:62 The law confers on the owner of each upper estate an easement or servitude in the lower estates for the drainage of surface water flowing in its natural course and manner without obstruction or interruption by the owners of the lower estates to the detriment or injury of the upper estates. Bach of the lower parcels along the drainway is servient to those on higher levels in the sense that each is required to receive and allow passage of the natural flow of surface water from higher land. It seems established that the upper owner cannot interfere with the natural flow by artificial means and thereby inflict damage on lower landowners. While he can accelerate or increase the flow onto lower land, he cannot divert it in the sense of collecting the surface water in an artificial ditch and discharging it upon the lower land at a different place or in a different manner than is natural or usual.63 The permission to "accelerate or increase" the flow is a modification of the civil law rule.64 Perhaps the most interesting case in North Carolina is Midgett v. North Carolina Highway Common.,65 in which the court classified 81 Sec. 143-215.21(7). The definition is quoted in note 18. 62 Midgett v. North Carolina Highway Comm'n., 260 N.C. 241, 132 S.B. 2d 599 (1963). 83 See generally Sherrill v. Highway Comm'n., 264 N.C. 643, 142 S.E. 2d 653 (1965) ; Phillips v. Chesson, 231 N.C. 566, 58 S.E. 2d 343 (1950) ; Davis v. Atlantic Coast Line R.R. Co., Ill N.E. 561, 43 S.E. 2d 82 (1947) ; Bradley v. Texaco, Inc., 7 N.C. App. 300, 172 S.E. 2d 87 (1970); cert, denied; Magnolia Apartments, Inc. v. Hanes, 174 S.E. 2d 828 (Ct. Appl N.C. 1970) cert, denied. M See Note, 47 N.C. L. Rev. 205 (1968). 65 Note 62, supra. Mr. Henry T. Rosser, Assistant Attorney General for North Carolina, quite correctly advises that the above statement of facts is not entirely correct. In a letter dated December 29, 1972, he states: "The property in question was located on the Outer Banks of North Carolina. These Banks front on the Atlantic Ocean and are isolated from the mainland by large sounds, so that they are, in effect, narrow peninsulas or islands. The property owner contended that in previous storms the storm waters of the Atlantic passed completely over the Banks and went into the sound lying to the west of the Banks. He claimed that the elevated highway running along the approximate center of the Banks created a dam which prevented the waters from passing into the sound and caused them to pond between the ocean and the highway, thereby flooding his buildings and causing substantial damage to his property. Thus, the elevated highway might be compared with a dam constructed by a lower riparian owner which causes ponding upon and damage to an upper riparian owner." |