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Show SOUTH CAROLINA 669 decide the reasonableness of the use because a prescriptive right had been acquired.42 Commercial uses of stream water generally have been for the pur- pose of carrying wastes (pollution) in the South Carolina cases. Ap- parently, discharges of industrial wastes are not per se unreasonable.43 When such pollution deprives other riparians of reasonable use of the water, either damages or injunctive relief may be granted.44 In some of the cases, the pollution was held to create a private nuisance. The recent decision of United States v. 531.13 Acres of Land45 is worth examining at some length because it illustrates the application of State law in the enforcement of State water quality standards. An upstream industry had for years been grossly polluting a tributary of a river which was dammed by the Army Corps of Engineers. Al- though the receiving waters met the then applicable class C water quality standards of South Carolina, the State upgraded the classi- fication to A in order to protect recreational uses of the reservoir. The result was that the company was obliged to install a disposal facility in order to comply with the new classification, and it sued the United States for the cost of these facilities. The lower Federal court awarded compensation.46 On appeal, it was held that under both statutory 47 and common law in South Carolina a riparian owner has no vested right to con- taminate a stream so that landowners below are deprived of the reasonable use of the water. Even without the intervention of the Federal Government in building the dam, or the State in reclassify- ing the water, a private lower riparian who wished to put the water to recreational uses could have complained of the pollution. Recrea- tional uses were said to be reasonable uses. The court indicated that if the industrial user felt that the action of the State water pollution authority was unreasonable in reclassifying the stream, its remedies against the authority should have been pursued. In placing the deci- sion on State substantive law, the court did not reach the issue of the effect of Federal pollution control legislation which protects inter- state navigable streams and their tributaries. It is well established that riparian rights are incident to the own- ership of land contiguous to a watercourse. But the measure of land qualifying as riparian remains a problem in manjr riparian jurisdic- tions. For example, general rules say that riparian land must not only be contiguous to a watercourse but must also be within the watershed of the stream, and that the size of the riparian tract is limited by such theories as the "chain of title" and the "unity of title" tests.48 There appear to be no South Carolina cases on these limitations. Moreover, in most riparian jurisdictions, it is assumed that water cannot be diverted for use outside the watershed of the stream. One *» Jordan v. Lang, 22 S.C. 159 (1885). «See Duncan v. Union-Buffalo Mills Go., 110 S.C. 302, 306, 96 S.B. 522, 524 (1917). "Williams v. Haile Gold Mining Co., 85 S.C. 1, 66 S.E. 117 (1910). «366 F. 2d 915 (4th Cir. 1966) cert, denied 385 U.S. 1025 (1967). *«See United States v. 581.18 Acres of Land, 244 F. Supp. 895 (W.D. S.C. 1965) where reasonable use was Interpreted quite differently. *7 See Sec. 2.2.2, supra. 48 See W. Farnham, The Permissible Extent of Riparian Land, 7 Land & Water L. Rev. 31, 35-43 (1972) ; D. Levi and K. Schneeberger, The Chain and Unity of Title Theories for Delineating Riparian Land: Economic Analysis as an Alternative to Case Precedent, 21 Buffalo L. Rev. 439 (1972). |
