As I type these lines, I hear rain falling on the roof of my house. Rain, snow and ice have been the great drivers shaping this land we call North Carolina for millions of years. The Earth’s crust has vaulted mountains of rock towards the western sky, but rain, snow and ice turned that rock into soil. Nourished by the water and the soil, our verdant Appalachian Mountains are home to the most diverse ecosystems east of the Mississippi. The Earth’s crust opened up a massive rift in the center portion of our state, but rain, snow and ice reshaped the hole into a series of rolling hills, creating the piedmont’s abundance of small streams. Advancing and retreating coastlines created a broad plain dotted with oval lakes and fringed with a string of sandy islands where English settlers first established their tiny colony. Our state’s history is water.
And so is our world’s. Water was understood by ancient rulers and sages as the source of life. The annual flooding of the Nile created the Egyptian breadbasket. Moses brought forth water to the children of Israel in the desert to preserve their life, after calling upon water to destroy their enemies from Egypt. Western civilization sprung forth in the area known as the Fertile Crescent, a place made fertile by the presence of abundant water from rainfall feeding the great rivers Jordan, Tigris and Euphrates. Rome was built on the Tiber, but soon outgrew that River as a source of drinking water, bringing in huge quantities of water from surrounding mountains by gravity. Emperor Justinian’s code stated the law that flowing water belongs to no person, any more than the sea belongs to any single person. Rather, flowing water is the property of all for the benefit of our children and their children in a sacred trust.
When any government acts to impair that trust, the people resist it. In 1215, at Runnymede on the banks of the Thames, King John was forced to sign a charter setting forth the rights of his subjects. Among the abuses the Magna Carta corrected, was the royal habit of granting exclusive fishing privileges in the Thames and other rivers in England to favorites in the royal court. The Magna Carta also protected the growth of the common law, under which England thrived for centuries and which England gave to her American colonies as their legal heritage, including their laws regarding water.
In 1774, Thomas Jefferson published a short pamphlet setting forth his property theory, captioned the “Summary View of the Rights of British America,” which publication got him added into a bill of attainder by the British parliament. Jefferson’s theory was that the settled colonists did not own their land by permission of the King, but by their blood, sweat and tears -title held by a society which settles an area. British lands were owned under feudal title-title derived from the British Crown. Jefferson returned to an older concept, sovereignty of the soil within the people of a society which settles that land.
Upon declaring its independence two years later, North Carolina became a free state, no longer bound to follow the laws of the British Crown. In its very first Constitutional Declaration of Rights, the North Carolina legislature declared its sovereignty over the soil for all of the land bounded in the charter of Carolina, including its waters.
The independent State of North Carolina declared:
“The property of the soil, in a free government, being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes…Therefore all the territories, seas, waters, and harbours, with their appurtenances, lying between the line above described, and the southern line of the State of Virginia, which begins on the sea shore, in thirty-six degrees thirty minutes, north latitude, and from thence runs west, agreeable to the said Charter of King Charles, are the right and property of the people of this State, to be held by them in sovereignty.”
Titles perfected by residents of North Carolina tracing to royal grants were respected, but like Jefferson, North Carolinians rejected the notion that the British Crown was the source of their land titles. While North Carolina’s legislature adopted the common law of England as its own, North Carolina’s judges did not feel bound by the common law of England and freely changed that law when it did not suit the needs of North Carolina’s commercial growth. When the natural flow doctrine (aqua currit et debet et currere ut currere solebat) impeded the ability of millers to harness the power of North Carolina’s streams for industry, the courts changed the law. North Carolina’s courts created an exception for reasonable use by owners of land abutting the water, riparian land. In shorthand, we refer to this exception as riparian rights. It is well argued that North Carolina’s courts were borrowing from American scholars who favored the French rules of watercourses from the Code Napoleon.
Other states west of us, rejected riparian rights as a limit on industry and agriculture. In those states, you did not need to own land adjacent to river to use it, you just needed to be the first person to claim the water, usually by digging a ditch to get the water from the river to your farm. These states were worried that riparian rights would lead to people hogging the water even when they had not been using it. In these states, the first user became the rightful user and all others had to line up behind, even when they owned riparian land. We refer to this system as prior appropriation.
But whether you are in the east or the west, running water is not your property. Your system of laws will give different people different rights to use the running water. These rights powered the industrial revolution in America, through mills and factories. These rights powered the Green Revolution here which saw a fivefold increase in agricultural productivity within a few decades. Now these rights also power tourism economies in western North Carolina and along its coasts.
Protecting these rights against encroachment is vital to protecting these resources for our children and their children. As population grows, so does the competition for these resources. Abundant rainfall is not enough to prevent shortage of water supply, just look to the example of Atlanta. As Atlanta grows, so will its search for water supply widen to include its neighboring states, like North Carolina. Water waste will become less profitable as water becomes scarcer. In order to protect these resources for our children and their children, we will have to be better stewards of those resources than we are today.