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Show 666 SOUTH CAROLINA of what constitutes a public use may even cast some doubt on the constitutionality of the new ground water legislation.22 b. LEGISLATION OF PERIPHERAL RELEVANCE Although there is no general water code dealing with water rights in South Carolina, there are a number of special statutes which ap- pear in title 70 of the code under the title "Waters and Water- courses." Briefly, they may be listed as follows: (1) The first chapter contains a number of general provisions de- fining "navigable streams" and declaring them to be common high- ways and forever free.23 The obstruction of such streams is made a nuisance. Special sections relate to logs obstructing streams, the duty of landowners to clear out streams, obstruction of streams generally and specifically in certain counties, sale of drifted boats, etc. (2) The chapter on water pollution was repealed in 1970 and is now combined with air pollution control in another section of the code, as discussed in section 2.3. a, above. (3) A chapter entitled "watercourses and cuts generally"24 in- cludes such matters as the erection of wharves and the right to charge reasonable tolls for their use. condemnation of land for inland waterways, liabilities of power or water companies for flooding burial grounds, and the obligation of landowners in specified counties to clean out streams. (4) A special chapter relates to maintenance of certain waterways and provides for cooperation with the United States in connection with projects authorized under special Federal acts.25 (5) There is extensive regulation of equipment used on, and opera- tion of, vessels on waters of the State.26 (6) A chapter entitled "local provisions" regulates the use of boats on specified rivers or lakes in the State.27 C. RIPARIAN RIGHTS The South Carolina law on water rights started with a typographi- cal error in an early case. The court misquoted a passage from Kent's Commentaries to the effect that although a riparian owner "may use the water while it runs over his land, he cannot reasonably [sic] de- tain it or give it another direction, and he must return it to its ordi- nary channel when it leaves his estate.28 The error was noted,29 and the word "unreasonably" was substituted, but the case was mainly important for firmly entrenching the riparian rights doctrine in South Carolina and for expressly rejecting the contention that the first person to erect a mill on a watercourse acquired a superior right. Any notion of priority of right based upon priority of ap- propriation was summarily dismissed (although it should be ob- 29 See C. Randall, note 18, p. 665, at 27. 23 Sections 70-1 to 70-7. See generally B. Wald, "Navigability-Its Meaning and Application in South Carolina," 23 S.C. L. Rev 28 (197H. Also of interest is J. M. Scott, "The Continential Shelf and the United States," 22 S.C. L Rev. 3 (1970). "Sections 70-163 to 70-204. 26 Sections 70-251 to 70-287. 38 Sections 70-295 to 70-295.32. » Sections 70-301 to 70-491. 28 Omelvany v. Jaggers, 2 Hill (S.C.) 634 (1835). » White v. Whitney Mfg. Co., 60 S.C. 254, 38 S.E. 456 (1901). |