Dunlap v. Carolina Power & Light Co.
1938 N.C. LEXIS 235, 195 S.E. 43, 212 N.C. 814 (1938)
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Rule of Law:
An upper riparian owner's use of a stream is permissible if reasonable, but they are liable for a physical taking of a lower riparian owner's property if that reasonable use directly causes damage, such as erosion, irrespective of the use's reasonableness.
Facts:
- Plaintiff owns land situated at the confluence of the Yadkin River and the Rocky River.
- Defendant operates a power plant with a dam on the Yadkin River, upstream from Plaintiff's property.
- In its daily operations, Defendant closes its floodgates at night, substantially diminishing the downstream flow of the Yadkin River.
- In the morning, Defendant opens the floodgates to resume power generation, causing an accelerated flow of water to move downstream in a large bank.
- When this bank of water reaches the confluence of the two rivers, its force and volume cause it to flow back up the channel of the Rocky River.
- This unusual, daily movement of water has caused the riverbank of Plaintiff's property to gradually erode and wear away.
Procedural Posture:
- Plaintiff sued Defendant in the trial court, alleging interference with riparian rights and a taking of property.
- At the conclusion of the plaintiff's evidence, the trial court entered a judgment of nonsuit, dismissing the plaintiff's case.
- Plaintiff appealed the trial court's judgment of nonsuit to the present appellate court.
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Issue:
Does an upper riparian owner's daily retention and release of water for power generation, which alters the natural flow of a stream, constitute an unreasonable use infringing on a lower owner's rights or a compensable taking of their property if it causes physical erosion?
Opinions:
Majority - Barnhill, J.
No, the use is not unreasonable, but Yes, it may constitute a compensable taking. A riparian owner is entitled to make a reasonable use of a stream's water for profitable purposes, even if it involves some retardation or acceleration of the natural flow, so long as it is necessary for a lawful enterprise and does not cause unreasonable harm. Here, the Defendant's daily holding and releasing of water for power generation is not an unreasonable use. However, a separate legal question arises from the physical harm to Plaintiff's land. Even a reasonable use of property does not permit the physical taking of another's property without just compensation. The evidence showing that Defendant's operations cause a daily surge of water that physically erodes Plaintiff's riverbank, if proven to a jury, constitutes a taking for which Defendant must compensate Plaintiff for the value of the land damaged or taken.
Analysis:
This decision bifurcates the legal analysis for riparian rights disputes into two distinct claims: unreasonable use and uncompensated taking. It clarifies that a defendant can prevail by showing their use of the water is reasonable for their industry, yet still be held liable if that same use causes a direct physical appropriation or destruction of a downstream owner's property. The case establishes that the reasonableness of an activity is not a defense against a claim for a physical taking. This has significant implications for industries like hydroelectric power, confirming they must compensate for tangible property damage their operations cause, even if those operations are lawful and otherwise considered a reasonable use of a shared water resource.
