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Show SOUTH CAROLINA 667 served that the case was decided long before prior appropriation doc- trines developed in the West. It was not until the turn of the century that the court analyzed the nature and scope of riparian rights. The so-called "natural flow" theory was then rejected as nonutilitarian, at least to the extent that it meant that each riparian owner had an absolute right to have the flow of the stream maintained in its natural volume and purity. In- stead, the court adopted the more flexible approach usually called the ''reasonable use" theory, relying particularly on a Michigan case, and held that:30 The different owners of land through which a stream flows are each en- titled to a reasonable use of the same, and an injury to one owner, incidental to the reasonable use of the stream by another, gives no right of redress.31 Probably the differences between the natural flow and the reason- able use theories have been somewhat exaggerated, but it seems clear at least that the latter view gives the court greater flexibility in evaluating the facts in a given case. To that extent, it may be difficult to predict the decision in a particular controversy. If reasonableness of use is a question of fact, the problem arises as to the type of evi- dence which is admissible. Belying upon a contemporary encyclopedia of law, and again on the Michigan case, the court felt that the factors which may be considered include the capacity of the stream, the adaptability of engineering devices to the particular watercourse, and, most important, the customs of the community. Based as it is on the peculiar facts of each case, the rule is sometimes criticized for its deterrent effect on expensive investments in water uses on the ground that a user can never be sure whether another's conflicting use, present or future, will be held to be reasonable under all the circumstances. In a predominantly agrarian community without ex- tensive irrigation, this may not be too significant. Under present-day demands for the use of water in highly populated areas and for in- dustrial purposes, it may constitute a real problem. Indeed, one writer charges that because of the application of the reasonable use theory in South Carolina "the use of water is spread so thinly among so many people that, generally speaking, no one can bene- ficially use it.32 This is severe criticism. Actually, the ramifications of "reasonable use" have not been ex- plored sufficiently in the South Carolina cases to provide a very re- liable basis for judging its merits in the contemporary water scene. One established limitation is that a natural "watercourse" must be involved. Courts often have difficulty defining the term, and over the years, the South Carolina court has been no exception. The definition is important, however, because it distinguishes a line of cases dealing with diffused surface waters from those involving claims of ri- parians. (Diffused surface waters are discussed in section 3.9, infra.) An early case defined a "watercourse," 33 and the guidelines therein suggested were relied upon by the court as recently as 1961 in John- *°Dumont v. Kellogg, 29 Mich. 420, 423 (1874). » White v. Whitney Mfg. Co., 60 S.C. 254, 38 S.B. 456 (1901). sa E. Guerard, "The Riparian Rights Doctrine in South Carolina," 21 S.C. L. Rer. 757, 770 (1969). BLawton v. «o«*A Bound R.R., 61 S.C. 548, 39 S.E. 752 (1901). |
