State Supreme Court Ruled in Favor of Kinston Area Farmer, 1924

By Robert E. Lee for the N.C. Bar Association, as published in the Lexington Dispatch in 1924

N.J. Rouse owned a farm about two miles from the city limits of Kinston. He sunk artesian wells on his land, which produced an abundant supply of pure and wholesome water. The water was used by a herd of dairy cattle, and the land became adaptable for irrigation.

The City of Kinston subsequently sank three 10-inch wells on a half acre of land acquired from an adjacent  landowner. The water was piped into Kinston and there sold to its inhabitants.

As a result of the wells being sunk on adjacent land, the wells on the land of Rouse practically ceased to flow. The value of his farm greatly dropped. Was Rouse able to recover from the City of Kinston a judgment for damages?

This was an actual case decided by the Supreme Court of North Carolina in 1924. It became a leading case dealing with underground percolating waters, establishing a rule contrary to that previously existing at common law.

Percolating waters are those that ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. Underground water is presumed to be percolating water.

Under the old common-law rule, percolating waters were a part of the soul where found and, as a consequence, belonged absolutely to the owner of the land. Under this rule, the landowner was not accountable in damages to others for the taking of any or all of such water.

The North Carolina Supreme Court adopted in the case of Rouse v. City of Kinston, as has been done by courts of other states in recent years, the doctrine of “reasonable use” of percolating waters.

This rule does not prevent the private use by any landowner of percolating waters under his land for manufacturing, agriculture, irrigation, or otherwise; but it does prevent the withdrawal of underground waters for distribution or sale, for uses not connected with any beneficial ownership of the land from which they were taken, if it thereby follows that the owner of adjacent lands is interfered with in his right to the reasonable use of water under the surface of his own land.

Rouse recovered in damages $9,000 from the City of Kinston. It made an unreasonable use of the percolating waters under its own one-half acre of land. The taking of great quantities of water and selling it to the inhabitants of the City of Kinston was an unreasonable interference with the water rights of an adjoining landowner.

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