70S 113 SOUTHERN REPORTER (Fla. Fla.) i
authorize the correction by amendment of a the jury might have legally found or infi.-rl Suit by r.
mere clerical error in an indictment when all the essential elements of the lofi.-, of F. Matir
the matter is not one of substance, as, for which the defendant was found guilty. Judgme:.i
instance, the date of the term of court at There is nothing in the record iidic.,tin, peal. .
which the indictment was found. See State that the jury was influenced by considl(r;h E.W. &
v. Humphries, 35 La. Ann. 966; State v. tions other than the evidence. Under such plants.
Jones, 9 N. J. Law, 2; Sharp v. State, 6 Tex. circumstances, the order of the -trial court. Massev W
App. 650; Murphy v. State, 36 Tex. Cr. R. refusing to grant a new trial for iusulilicicle- for app.il.
24, 35 S. W. 174. The rule is also recognized cy of the evidence, will not be reversed. un-
at common law, independently of statute. less, after allowing all reasonable presump- BROWN.
Rex v. Darley, 4 East, 174, 102 Eng. Reprint, tions for its correctness, the preponderance in the c-
796. See, also, the cases cited in the note to of the evidence against the verdict is so de- lowering
Dodge v. U. S., 7, A. L. R. 1510. In con- cided or manifest as to clearly convince the the smri .
sonance with that rule, this court has held appellate court that such verdict is wrong of center'
in at least two cases that, where the record and unjust. Parrish v. State. 90 Fla. 25, heavy rai-::.
proper shows that an information or indict- 105 So. 130. The evidence in this case does a the r
ment was filed in open court during a term, not so impress us. cauind t
the clerical error of misnaming in the cap- Affirmed. inering <
tion of the indictment the particular term at me pine
which it was filed constitutes.no ground for ELLIS, C. J., and BROWN, J.. concur. and other
reversing a judgment of conviction thereon, WHITFIELD, P. J., and TERRELL and The bill i
where the error does not result in rendering BUFORD, JJ., concur in the opinion, owners of
the indictment so vague, indistinct, and in- which is
definite as to mislead the accused and em- miles a
barrass him in the preparation of his defense drained ,
or expose him after conviction or acquittal
to substantial danger of a new prosecution TILDEN et al. v. SMITH.
for the same offense. Williams v. State. 42 Supreme Court of Florida, Division A. Aug. appellee
Fla. 205, 27 So. 898; Sutton v. State, 84 Fla. 1, 1927. property a'
98, 92 So. 80S. See, also, section 6004, Rev.
Gen. Stats. 1920. See, also, Burroughs v. (Syllabus by the Court.) deep ueltr
State, 17 Fla. 643. 1. Waters and water courses ==1O09-Statute Florida,
In the indictment before us we find three held not intended to prevent landowner from and had i
dates, one of which appears to be erroneous- sitkingwel connectingealth a terranan
waters to lower overflowing take to normal healt a :
ly stated. Two of the dates, namely, the level (Rev. Gen. St. 1920, 1190, 1191; Acts had not 01
date of the offense as chnr-ed in the body of 1913, c. 6456). owners of
the, 1913, ,an6456).towners ilig:o
the indictment, and the date of the filing of It was not the purpose of section 119), Rev. by said la:-
the indictment, are consistent. The indictment Gen. Stats. 1920, to prevent an owner of lands the defer
was filed on January 12, 1927, charging an fronting on a lake whose waters had risen to of the sr
offense to have been committed on January an abnormally high level by reason of unusual- upon the
10, 1927. An indictment speaks as of the ly heavy rainfall, causing overflow of his lands The a- ...
date of its filing, a date which in this in- and serious damage thereto as well as the lands he was d.
stance is consistent with the date upon which of others abutting on such lake, from sinking d ,
a well on his property connecting with tlhe sub- but denied
the offense is alleged to have been commit- terranean waters of the state for the purpose during t:.
ted. Under the circumstances, we think the of lowering the waters of said lake to their point whi "1
date stated in the caption is clearly a clerical normal and customary level. I margin in';P
mnisprision. As the defect is one of form ter point of -i
only, and as it does not appear to us that 2. Waters and water courses <.l09-ntention e i
of statute is to prevent lowering of normal lege tha
such defect could have reasonably misled level of lake below ordinary high-water mark i more, espyi.
or embarrassed the accused, or that it ex- (Rev. Gen. St. 1920, 1190). the year in 1
poses him to substantial danger of a new It was the evident intention of section 1190, had been
prosecution for the same offense, the same Rev. Gen. Stats. 1920, to prevent the lowering 1 the lake to
affords no grounds for reversal, even if the of the normal level of a lake below its ordinary and to ...
point can properly be raised by motion in or average high-water mark. larly app' !
arrest of judgment, as to which see Mills Orange
v. State, 58 Fla. 74, 51 So. 278; Barineau 3. Waters and water courses =109--ln ascer- j during a
v. State, 71 Fla. 59S, 72 So. 17; Adams v. training average high-water mark of lake, i pense, wa
.Stat71F 72So.9Adams evidence as to vegetation on banks is admis-
State, 72 Fla. 32, 72 So. 473; Smith v. State, sibe (Rev. Gen. St. 1920, 1190, 1191). worth.
72 Fla. 449, 73 So. 4; Sumpter v. State, In ascertaining the normal level and aver- to thn '
62 Fla. 98, 57 So. 202. age high-water mark of a lake, evidence may to
 The remaining contention of the de- be introduced as to the character of the vege- answer i-b
fendant relates to the sufficiency of the evi- station upon its banks. situated :"
dence to sustain the verdict. We have read the lake 1"
the evidence with care. The bill of excep- Appeal from Circuit Court, Orange Coun- The hi!'
tions discloses sufficient evidence from which i ty; C. O. Andrews, Judge. and tlhe ;,"
i ---jtion for i:.
e;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes !
Fla.) TILDEN v. SMITH 709
or infe:red Suit by L W. Tilden and others against C. testimony taken before the chancellor in per-
offen.e f t F. Mather Smith for an injunction. From a son and several affidavits submitted by the
md guii. Judgment for defendant, complainants ap- parties. The chancellor denied the injunc-
indic;t ii; peal. Affirmed. tion and the complainants took this appeal.
consid.ra,. E. W. & R. C. Davis, of Orlando, for appel- This bill was evidently filed with reference
Under st)h plants. to sections 1190 and 1191,, Rev. Gen. Stats.,
*trial couri. Massey, Warlow & Carpenter, of Orlando, derived from an act of 1915. These two sec-
insutliclien for appellee. tions read as follows:
versed, un- "1190. It shall be unlawful for any person,
le presunp- BROWN, J. The appellants filed their bill persons, firm or corporation to drain or draw
4pondl(raue,.e in the court below to enjoin the appellee from water from any lake of greater area than two
ct is so delowerinthe waters of LkeJohns, one of square miles so as to lower the level thereof
convince the without first obtaining the written consent of
t is wrong the smaller lakes located in the lake region all owners of property abutting on or bounded
90 i w of central Florida, which, owing to very by said lake: Provided, however, that this ar-
90 Fla. 25,
is case does heavy rainfall, had overflowed his property tide shall not apply to any lake included wholly
and the property of some of his neighbors, within any drainage district created by chapter
causing destruction of citrus groves, the sub- 6456, Acts of 1913, Laws of Florida, or acts
merging of appellee's golf course, the killing amendatory thereof, or under any other laws of
of pine and other trees of natural growth, the state of Florida.
concur and "1191. Courts of chancery shall entertain
and other property damage.
other poetn damage. suits by persons claiming to own lands abutting
IRELL and The bill alleges that the appellants are all ion o bounded bs lakes in the state of aloridn
alone. owners of property abutting on Lake Johns, of greater area than two square miles, to en-
which is of greater area than two square join any person, persons, firm or corporation
miles and not included wholly within any from draining or lowering the level of such
drainage district created by chapter 6156, lake."
H. Acts of 1913, or acts amendatory thereof, or
any other laws of the state of Florida; that While the testimony was in conflict on
on A. Aug. appellee had caused to be drilled upon his some important points, there was evidence
property on the eastern margin of the lake a tending to show that Lake Johns, which was
) deep well to drain off the waters of said lake about seven miles long and about two or
i09-nto the underground waters of the state of three miles wide, was not fed by under-
09-Stner fm Florida, so as to lower the level of the lake. ground s-prings as so many Florida lakes are,
subterranean and had obtained from the state board 7f but by the rainfall in the vicinity of the lake,
e to normal health a permit to do this; that the appellee which had no streams running into or out of
3, 1191; Acts had not obtained the written consent of all Iit. That there was considerable variation in
S owners of property abutting on or bounded the average maximum high-water mark of
)n 1190, Rev. by said lake so to do; and that such acts of the lake during a series of unusually dry
m~er of lands the defendant were in violation of the laws ears as compared with a series of unusually
had risen to ;of the state of Florida and an infringement wet years, but nevertheless the character of
1 of unislal- upon the rights of appellants. the vegetation and trees around the lake gave
of hs lands The answer of the appellee admitted that some evidence of an average or ordinary
from sinking he was drilling a deep well upon his property, high-water mark, and indicated that the wa-
i-ith the sub- but denied that iL was for the purpose of rc- ter level at the time appellee sunk his well
the purpose during the natural level of the lake below the was considerably above such average level of
ake to their point which the growth and vegetation on the the lake as so indicated. See Martin et al.,
margin indicated to be the ordinary hirh-wa- Trustees, etc., v. Busch, 112 So. 274, decided
09-Intention ter point of the lake. The answer further al- at the January term, 1927. The appellants
ig of normal leges that during the past two years and were owners of property abutting on the lake,
i-water mark : more, especially within the last six months of but so far as the evidence shows had not suf-
the year in which the answer was filed, there f'ered like some of their neighbors, including
section 1190, had been excessive rains which had caused appellee, from the unusually high water in
the lowering the lake to rise above its natural boundaries I the lake. The appellee was likewise the own-
r its ordinary and to flood the adjacent territory, particu- er of considerable property abutting on the
larl.v appellee's property known as the West lake, which he used as a country club with
09-In ascer- Orange Country Club, which, constructed a golf course, clubhouse, cottages for rent,
irk of lake, during a period of eight years at great ex- etc., which cost him in the neighborhood of
iks is admis- pense, was flooded and rendered practically $150.000, and had yielded him some revenue
), 1191). worthless, and the several residences erected before the property was flooded by the rise of
*el and aver- thereon were no longer fit for habitation ow- the lake. That appellee began these improve-
evidence may ing to the flooded condition of the land. The ments in May, 1915, at which time he had a
of the vege- answer also alleged that appellee's well was survey made; that trees about the lake at
situated at a point higher than the level of that point then showed that the water had
i the lake when within its natural boundaries, not been there for a great many years and the
range Coun- The bill did not waive answer under oath, level of the lake was about 51/2 feet below the
and the ans-wer was sworn to. On applica- surface of the adjacent land, on which there
Indexes tion for injunction, the cause was heard on were trees about 35 years old. That Lake
710 113 SOUTHERN REPORTER (Fla.
lake, lovrin- ,
Johns maintained its then level until about 'interest of those engaged in trucking on lands water in'b i,,
1923, -when owing to heavy rains it began to adjacent to the laa e to mai ntain it at the eX- action for In,
rise, and during the euinimctial strms of isting high level on account of the frost pro- an action also 1
1923 it rose during that month alone 15.2 j tection it afforded; and that if the.levwl were cause the v,..i.
inches. During 1923 and 1924 the waters rose lowered during wet years, it would go ei- land o r ant...
about 7 feet and at the time the testimony timely too low during dry years to afford the riparian or
was taken in December, 1924, appellee's golf ilecessary frost protection. mentioned *
course was submerged. the water was up to On the whole, there was ample evidence to e, d a .
the clubhouse porch, where boats were tied, sustain the action of the chancellor in deny- affected rni .:
and all cottages or guest houses except one ing the injunction.. We quote as foll ,ws from n to enjoin the :
were uninhabitable. That a Mr. Hart who the able opinion of the chancellor a.coip.n.- Cyc. 639.
had homesteaded land nearby abutting on the ing his order refusing to restrain the appol-
lake, in 1920, and had resided on it for 3, lee from reducing the then existing water See, also, 27 .
years, had been compelled to abandon it, the level of the lake by the method pointed out But these
water covering the floor of his house 1% inch- in his answer and testimony: cited by actin .
es and killing several hundred trees on his "Injunction being a summary and severe in- natural or i ,
place. That a tract which had been used as strument of courts, it should be used with great water. Thu in
an aviation field by the government in 1917- caution, and the burden of proof is upon those wat us i
18 was submerged, and that on. Mr. Seegar's seeking to invoke it to clearly show that great 82 Minn. S43,
grove, on the east side of the lake. the water injury either temporary or permanent is im- 83 Am. St. t.,
had killed about 100 orange trees, 20 years pending and can be averted only by its use. is said:
old, and nearly 800 small trees. That a Mr. The court finds that the word 'level' in hav- 1It is elen ..
Brock, who had bought Turkey Island ing reference to waters ir lakes and pods prevent an ju ,
seems to mean a line at which the water usually raising of the \\'
Lake Johns, in 1918, and used it m, (tly for stands when free from disturbing causes, or asof low and hi v
trucking, had planted some 300 fruit trees the usual or ordinary height, or as the mean not in the exer
and 100 Avocado pear trees. That the water altitude or distance. unless such act
in Lake Johns was then about 7 feet lower "The testimony in this case shows that the .* If ther,
than at the time of his testimony; that the waters of Lake Johns are admitted to be much caused by the a
lake had flooded 3 acres of his vegetable h~iiher than its natural boundaries or level for above the natural
land, had killed a dozen orange trees, and many years past, due to unprecedented rains for there is also a
ijr mn mr whc wol prothe last year or six months; that this excess is an unsightly i "
injured many more which would probably die shown to have killed orange trees, also pine drawi off t
unless relief was afforded; that his boat- trees many inches in diameter and several years It is imuiate::
house, which 2 years before he could enter old. In this case the- burden of proof fails to land is used. if i
standing upright in his boat, was completely show, and the court is therf,.e not prepared distinction in t
,mibmerged and his pumphouse flooded. One to hold, that the 'level' of Lake Jpohns is at the a summer res
Arthur Speir deposed that he had lived on p bw pr y sou he dnt overws much ous land f
valuable property to the depth of several feet.tion, and
Lake Johns since 1SS1, and that the water This is based upon the testimony of several cent bodies of
was now several feet higher than it had been o'.,lr residents of that contriunity, also upon remedy for an inu
since that date; that there were pine trees exhibits to the court showing the inundations edition "
15 inches in diameter standing in the water of large trees, groves, and buildings around the
of Lake Johns at the time of his affidavit; border of the lake resulting in serious damage See. also, Hav
that pine trees were readily killed by stand- to "Equity cannot be invoked to prevent persons A. 2 23 A .
ing water, and that if at any time prior to front undertaking tO minimize a serious damage consin St ."
the present the waters had risen for any resulting from an abnormal condition merely for Wis. 534 to N.
length of time so as to cover the ground on the purpose of minimizing or better securing 651" Lak
which the trees were standing, the trees would others from a mere contingent danger such as Civ. ap.) -
have died. The affidavit of C. S. Brock said frost protection, and more specifically when it Great Falls .!.,
that the present condit on was absolutely ab- is shown that Lake Apopka, about 20 times the 3 16
nral the t e hd kton Lak Jbsohntey and size of Lake Johns and nearly adjoining it, is [1, 2] Apr',I.: "
nornmlo that he had known Lake Johns and n the north and west of the same property of basis that the ,*
Turkey Island for over 30 years, and that the petitioners." in the author;
lake had never before done any damage to his
knowledge. Mr. S. J. T. Seegar, witness for In 40 Cyc.. p. 635, it is said: rf in co'
the defendant, testified that he had known "The owners of land abutting on a private that a riIi.:,
Lake Johns for 37 years and had never seen lake have the same right to make a reasonable has no right t,
the level of it so high as at percent: that the use of the water for domestic, agricultural, and the lake u
high water had killed about 100 of his trees, mechanical purposes, but no one may appro- the unua *'i
20 years old, and had seriously damaged private or divert the entire body of water or howunuu ..
20 yearlsO omld, n ppd hdsimake such an excessive use of it as to deprive may be. I I .
nearly 800 smaller trees. others of their right to a reasonable participa- to the u-,i ,I
There was testimony for the complainants tion in its benefits." contend that v
to the effect that they had. lived for a great happens to b- i
many years on their lands adjoining the lake And again, on pages 638, 639, of the same such as ri. "-
and had selected their locations with refer- volume, it is said: at least thei -
ence to the frost protection afforded by the "A riparian or littoral owner whose right and If this thlry '-
lake to their vegetable crops; that the lake privileges in the waters of a lake or of the conclusion. O:n
had many times been as high as it was at the stream issuing from it are unlawfully interfered time from ci --
time the bill was filed; and that it was to the with by operations which result in draining the
'. ...-. .. -.. -.. ;.-- -^- ... ....... .. .-
Fla.) TILDEN v. SMITH 711
i (113 So.)
Slake, lowering its natural level, or diverting the to cover the lands of the appellants as well
water into another channel, may maintain an as those of the appellee, and those of all the
action for damages against the wrongdoer. And shore owners except one, whose land hap-
S an action also lies against one whose operations opened to be on such a high promuntory as to
cause the waters to be set back and flood the be above the tood waters, this one individual,
land of another. Where injuries to
riparian or littoral rights of any of the kinds refusing to consent, could under the statute
mentioned are permanent in charac- quoted prevent all of the other riparian
ter, and such as could not be adequately com- owners from taking steps to lower the lake
pensated by a recovery of damages, the party down to its natural level and within its usual
affected may have the aid of a court of equity boundaries. But neither the statute nor the
to enjoin the unlawful acts of defendant." 40 common-htw rule will bear any such strained
Cyc. 639. construction. The law gives no man a vested
e, as, 27 R. L. 1. right in a flood or a freshet, or conditions
Ssee, also, 2T R. C. L. 1190 107. created thereby. As bearing on this point
| But these propositions in the several cases eaoodrich. eilln, 21 Mieh. O
see Goodrich v. Mc3Millan, 217 Mich. '-0,
cited by appellants all seem to be based upon 187 N. W. 368, 26 A. L. R. SO8, and notes.
such action as either raises or lowers the Statutes must be construed in the light of the
n natural or ordinary level of the body o
water. Thus in Sanborn v. People's Ice Co., so far as the same is not clearly incon-
? in so far as the same is not clearly incon-
82 Minn. 43, 84 N. W. 641, 51 L. R. A. 829, also wel-
83 Am. St. Rep. 401, cited by appellants, it settled that government patents of lands I
| is said: bounded by navigable waters convey titles
"It is elementary that the shore owner may to the ordinary high-water mark of such .
S prevent an injury to his land by the lowering or waters, and not to high-water mark tempora- -1 : "
raising of the waters beyond the natural limits rily existing during flood or freshet or n-
: -of low and high water mark. by artiLicial means,, -
not in the exercise of rights common to all, usually hih tides. 9 C. J. 182, 192, 193.
i unless such act be expres-ly authorized by law. Flood waters which are of no substantial ',
S If there is a remedy for an injury benefit to a riparian owner or to his land. and / /
S caused by the artificial raising of the water are not used by him, may be appropriated by
above the natural line, thus flooding a meadow, any person who can lawfully gain access to
there is also a remedy to prevent exposure of the stream, and may be conducted to lands
an unsightly and unhealthy marsh by artificially not riparian, and even beyond the watershed
-drawing off the water below the natural level.of the stream, without the consent of the ri-
It is inimmaterial for what purpose the shore with cneno t
parian owner and without con!:ensn.tion to J
land is used. if it be a lawful use. There is noer ad ith t
distinction in this respect between a farm and him. But where the water in quest on, al-
a summer residence. Employment of contign- though in a sense high water or flood water.
ous land for the purpose of-pleasure, recrea- is nevertlele.-s a part of the regular and
tion, and health constitutes such a use of adja- usual flow of the stream for a considerable
cent bodies of public water as to command a period of each year, and at a time when such
remedy for an interference with its natural con- is of substantial use and benefit to the
diton." riparian lands, or the flow of such water in
See, also, Hazen v. Perkins, 92 Vt. 414, 105 its aciLustIicd place is necessary to the
A. 249, 2:3 A. L. R. 748, 752; Priewe v. Wis- gathering of water in subterranean strata
consin State Land & Tnmprovement Co., 93 from which' the owners of the underlying
Wis. 534, 67 N. W. 91is, :3 L. A. 645, text lands are enritted to take it. there is no right
651; Lakeside Irrigation Co. v. Kirby (Tex. of appropriation for unuripl:rian use as
Civ. App.) 16O S. W. 715; State et al. v. against the riparian owners. See Gallatin v.
Great Falls Manufacturing Co., 76 N. 373. Corning Irrigation Co., 1C3 Cal. 405, 126 P.
83 A. 126. 04, and Ann. Cas. 1914A, page 74, with note.
[1, 2] Appellants seem to proceed on the on page 82.
basis that the common-llnv rule as set forth But the flood waters here in question were
in the authorities cited by them, when con- not shown to be a natural annual occurrence,
strued in connection with the exact language or such as would create any rights of the
of section 1190 of Rev. Gen. Stats., means kind pointed out in the above case and the
that a riparian proprietor on a pond or lake many cases therein cited.
has no right to attempt to lower the level of It is true that said section 1190 makes it
the lake under any circumstances, no matter unlawful to lower the "level" of a lake with-
how unusual and unnatural the existing level out first obtaining the written consent of all
may be. He may not endeavor to restore it property owners abutting on or bounded by
to the usual or natural level. Appellants the said lake. It will be observed that the
contend that whatever the level of the water statute does not make it unlawful to lower
happens to be, if caused by a natural cause the abnormal level of a lake. It would be
such as rainfall, that is the natural level or necessary to interpolate the word "abnormal"
at least the level intended by the statute. before the word "level" in order to construe
If this theory were followed out to its logical this statute in such a way as to make unlaw-
rconcluion, and Lake Johns should at some ful the act of the appellee under the facts as
ttm..... from excessive rains rise high enough found and construed by the chancellor. It is
,. -., .. .
712 113 SOUTHERN REPORTER (Fla.
said by counsel for appellee in their brief that line between the riparian owner and the public. Fla.)
Dr. Johnson, in his famous dictionary of 1755, It is the point up to which the presence and ac-
defined the word "level" as "customary tion of the water is so continuous as to destroy There v
height." We have not end< a-vorcd to verify the value of the land for agricultural purp- .. for want of
this definition, but we are satisfied that this by preIvnting the growth of vegetation, consri- The d.r,
was what the Legislature had in mind, and what may be termed an ordinary aricul- dismiss,.
that it was not the intention of the Legisla- taken.
ture, in using this word "level," to give per- In Dow v. Electric Co., 69 N. H. 49S, 45 The bill
manency to or to prolong abnormal and un- 350, 76 Am. St. Rep. 10, the Supri e Court grounds for
usual conditions, fraught with such damage of New Hampshire said: should have
as the inundation of farm lands, homes. cat- the opin,
tie, and crops, but that the intention was to "The high-water mark on fresh water rivers Deen Tur
prevent any person from lowering the normal, is not the highest point to which the stream The deer,,.
preventany person from lowering the normal, rises in times of freshets, but is 'the line which d it
usual, and ordinary level of a lake without the river impresses upon the soil by covering it for further
first obtaining the written consent of the own- for sufficient periods to deprive it of vegetation eqor further -
ers of property abutting thereon. This word and to destroy its value for agriculture.'" equity rules :
as used in the statute does not mean the ab- Reversed.
normally low level of a lake during one of a In spite of the very able brief and argu-
series of excessively dry years, or the abnor- nment submitted in behalf of the appellants, WHITFIEII.; j
mally high level of a lake during an exces- we cannot bring ourselves to accept the con- concur.
sively wet year or series of wet years, but the struction of the statute for which they con- ELLIS, C. :
average or mean level obtaining under fairly tend, and, inasmuch as there was ample evi- 3J., concur in
normal or average weather conditions, allow- dence to sustain the chancellor's conclusion,
ing the proper range between high and low on the facts, the decree appealed from will be
water mark in average years. "The term affirmed.
'lake,' when used in reference to a navigable Affirmed.
body of fresh water.in a conveyance describ-
ing one boundary of the land as being on the ELLIS, C. J., and STRUM, J., concur. MART
lake, is to be construed as fixing the boundary WHITFIELD, P; J., and BUFORD, J., con. Supreme Cc
at the line at which the water usually stands cur in the opinion.
when free from disturbing causes. Sea man
v. Smith, 24 Ill. (14 Peck.) 521, 524; Fletcher (Sama'
v. Phelps, 28 Vt. 257, 261." 5 Words and Mechanics' liens
Phrases, First Series. not allowable n
[- . In Miin.t,1'a Lake Improvement, 5 MeCAMY v. PAYNE. liens (Acts
Minn. 513, 58 N. W. 295, 45 Am. St. Rep. 494, Supreme Court of Florida, Division B. Gen. St. 1920
the Supreme Court of Minnesuta said: July 13, 1027. That part
"In the case of fresh water rivers and lakes- (Sylabus by the Court.) on authority of .
in which there is no ebb and flow of the tide, Beach Bank & b" C
but which are sihj.ct to irregular and occa- Guardian and ward 1C=05(1)-General demur. Fla. (62, 95 S.
sional changes of hi!t, without tixed quantity rer to bill to cancel guardian's deed, alleging 86 Fla. 470, S
or time. except that they are pri'dica!, recur- grounds for equitable relief, should have been and should oth .
ring with the wet or dry s.... as of the year overruled.
-high-water mark, as a line between a ripari-n The bill contains allegations constituting Appeal from
owner and the Luallic, is to be determ'.ind by grounds for equitable relief and the demurrer H. F. Atkinso"
examining the bed and banks, and ascertain- which was :'nt'- ... -d shu],l have been over-
img wicrc the prcincc and ectin of the .,tt.r r::-.d on authority of the opinion in the case Suit by IL. P-I
are so conmon and usual, and so long canuinrd of Wilkins et al. v. Deen Turpentine Co., 84 .Martin, executrx
in all ordinary ycars, as to mark upon the 4.i1 Fla. 457, 94 So. 5CS. ment of John I.
of the bed a ch'':clct'r distinct from that of the force a mater':
banks, i respect to rc nation, as well as re- App eal from Circuit Court, Orange Coun- for the compi I.'
aspects the nauare of the soil itself. 'High- ty; Frank A. Smith, Judge. versed in part.
water mark' means what its language imports
-a water mark. It is co-ordinate with the Sith the Suit by James Edwin MCamy against Lu- Shutts & Bo
limit of the bed of the water; and that only is cius L. Payne to cancel a guardian's deed. Miami, for ap: .*..
to be considered the bed which the water oc- From a decree sustaining a demurrer to the W. F. Brow: >
cupies sufficiently long and continuously to bill and dismissing it, complainant appeals. Wood, all of Mi.
wrest it from vegetation, and destroy its value Reversed, with directions.
for agricultural purposes. Ordinarily the PER CURIAMD. '
slope of the bank an.i the character of its soil H. S. Glazier and Frank Riherd, both of by R CtR IA-l.
are such that the water impresses a distinct Tampa, for appellant. f by a materials.
character on the soil as well as on the vegeta- Massey, Warlow, Carpenter & Fishback, force an allegs e:0
tion. In some pyaces, however, where the banks of Orlando, for appellee. the real estate a i
are low and flat, the water does not impress as described in t
on the soil any well-defined line of demarca- not appear that
tion between the bed and the banks. BUFORD, J. In this case bill of complaint werenocear t '
"In such cases the effect of the water upon was filed seeking to procure a decree to cancel the land might e ..
vegetation must be the principal test in deter- a deed made by a guardian conveying the of John H. tiay.
mining the location of high-water mark as a interest of a minor in real estate._ _Decree was i: a
$ >For other cases see same topic and KEY-NL.MBER in all Key-Numbered Digests and Indexea for the sum of ciA