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.
