July 10, 1981
Re: State Water Policy-Property Rights
As you know, the Governing Board of Southwest Florida Water
Management District has gone on record as favoring the addition
of a statement in the proposed State Water Policy relating to
the rights of property owners.
It has not taken action on specific wording but has been provided
with copies of current wording to which no objection has been
To date, no one has submittedtany legal brief or response beyond
what was prepared in this office and given general circulation
by DER. It bears a date of May 27, 1981.
At the workshop held by DER on July 7, 1981, Vickie Tschinkel
requested that a written position paper be submitted to her
within two weeks. This can be a preliminary draft but should
give some guidance as to the posture being taken by various
She continued the workshop until September 29 and requested that
formal memoranda of law or briefs be submitted to her during the
first week in September together with recommended specific language
and suggestions for items to be included in the economic impact
Please start preparing both of these documents. There is much
confusion on this issue but it is beginning to crystalize to some
The Governing Board of St. Johns River Water Management District
had a lengthy discussion on this on June 10, 1981 during which time
Mrs. Capehart mentioned that she was uncomfortable with putting a
statement on property rights of any sort in the rules because it is
not in the statute. If it should be in the Law of Florida, it should
be a legislative perogative to put it into the Law of Florida and
not an administrative perogative. The legislature left it out and
this commission was recognized by the Supreme Court. She suggested
that the Board consider taking a position that it is inappropriate
for this language to be contained in the water policy. (Excerpts
MEMORANDUM TO TEC
July 10, 1981
A motion was made and seconded to advise the Secretary of DER
that the St. Johns River Water Management District does not feel
that any proposed policy statement of property rights to water
should be included in the State Water Policy rule since the concept
is contrary to the law. This passed 4-2.
On July 2, 1981, Lee Worsham prepared a memorandum of law which
was distributed to the St. Johns Board members. The Chairman
took exception to this since it paraphrased the minutes stating
that the Governing Board voted to oppose the property rights
proposal or any variation of it as being contrary to law. The
Chairman pointed out that the proposed statement included the
qualifier "as limited by law" and that any statement qualified
by use of the words "as limited by law" could hardly be considered
to be "contrary to law."
I have read Lee Worsham's memorandum and have told him that I have
some problems with his conclusions. Lee says one thing in his
memo and proves another.
For example, on page 3 he correctly points out that Jupiter did not
have a constitutionally protected property right in the shallow
water table water beneath its property which was then being utilized
by the City of Tequesta. He cites Dean Maloney, (see page 4),
as suggesting that permit programs should not be based solely on
ownership or control of land unless it satisfies a factor of the
reasonable beneficial test.
Lee also points out that it would appear that as a matter of public
policy the Governing Board could adopt a rule preferring uses on
overlying lands over other uses and that this would be consistent
with historic development of the common law. I have read and reread
the Tequesta case and I find that the term proprietary right appears
quite often. Proprietary of course means belonging to or ownership;
belonging or petaining to a proprietor; relating to a certain
owner or proprietor.
Proprietary rights are those rights which an owner of property has
by virtue of his ownership.
A proprietor is one who has the legal right or exclusive title to
anything. In many instances it is synonymous with owner.
On page 666 of the Tequesta case the Court explains that the so-called
"American" or "reasonable use" rule rejected the "to the sky and to
the depths" notion for another maxim, "use your own property so as
not to injure that of another."
MEMORANDUM TO TEC
July 10, 1981
Also on page 666, the Court states that the reasonable use rule
adopted by most Eastern states, including Florida, was stated by
one Court as follows: "a landowner, who, in the course of using
his own land, obstructs, diverts or removes percolating water
... must be making a reasonable exercise of his proprietary
On page 667, the Court says that in applying the reasonable use
rule this Court has not given definite answers as to the actual
amount of water that may be taken by overlying landowners. On
the same page the Court quotes phrases from 93 C.J.S. Waters
which refer to "ownership" and "the right of the owner of the
The Court is very careful to point out the distinction that the
term ownership as applied to percolating water never meant that
the overlying owner had a property or proprietary interest in
the corpus of the water itself but merely that there is a right
of use of the water as it passes beneath the owner's land but there
is not ownership in the absolute sense in the water itself.
The Court states that the water belongs to the overlying owner
in a limited sense.
It also states that the right of the owner to groundwater underlying
his land is to the usufruct of the water and not to the water itself.
(Perhaps we should change the proposed statement to utilize the
word "usufruct.") On page 671 the Court points out that without
a permit Jupiter has no such property right to the use of water
beneath its land for which, upon deprevation, it must be compensated.
(This would lead one to the conclusion that if Jupiter had such a
permit that it might have a property right to the use of water
beneath its land for which, upon deprevation, it must be compensated
through inverse condemnation.)
On page 672 the Court goes on to summarize its holdings and states:
#2. "There was no ownership in the waters below the land,
as the right of the owner to groundwater underlying his land
was to the use of the water and not to the water itself."
I hope that you can make some sense of this and come up with both a
position paper and the beginnings of a new brief or memorandum.
I would not want to take the position that it is absolutely essential
that a statement such as this be included in the State Water Policy
but rather take the position that the inclusion of a statement such
as the one proposed is completely consistent with current Florida law.