Title: Common Law Rights and Remedies
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000912/00001
 Material Information
Title: Common Law Rights and Remedies
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Common Law Rights and Remedies
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000912
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


Florida's system of water management provides a structure,
procedure, and some substantive water rights, that replace the
pre-existing common law, or non-statutory, water rights. But
some of the common law rights and remedies were not extinguished
by the 1972 Water Resources Act, so they remain an important part
of Florida's water law. The common law rights and remedies are
most easily discussed in terms of surface water and ground water.

A. Surface Water Rights Navigable Water Bodies

The first category is surface water, with a subcategory of
navigable water bodies. Private rights in navigable water
bodies, based on ownership of adjoining lands, are called
riparian rights. These rights include:

1. Reasonable withdrawals from the water body;

2. Exclusive access over riparian uplands to
the water body;

3. Navigation (in common with the public and
other riparians and their invited guests);

4. Unobstructed view of the water;

5. Swimming;

6. Fishing;

7. Wharfing out; and

8. Right to land deposited by accretion or
exposed by reliction (and subject to loss
of land due to erosion).

Board of Trustees of the Internal Improvement Trust Fund v.
Medeira Beach Nominee, Inc. 272 So.2d 209 (2d DCA 1973); Thiesen
v. Gulf, F. & A. Ry. Co., 78 So. 500 (1918), modifying 78 So. 491
(1917); Padgett v. Central and Southern Florida Flood Control
District, 178 So.2d 900 (2d DCA 1965).

Riparian rights are based on ownership of uplands including dry
land and swamp and overflowed lands so long as that includes some
common boundary with a navigable body of water. The boundary


between uplands and the fresh, non-tidal, navigable water body
historically has been the ordinary high water line; it is the
mean high tide line for salt water or tidal navigable waters.

The OHWL cannot be frozen in time. Freezing the OHWL, for
example, would eliminate the upland owner's common law rights to
title to land formed as a result of accretion (gradual and
imperceptible deposit of soil) or exposed as a result of
reliction (gradual and imperceptible recession of water). These
common law rights preserve the upland owner's status as a
riparian owner and preserve his access to the water body. The
boundary also changes if the water erodes the upland property,
thereby extending the state's title landward. If the migratory
nature of the OHWL were terminated, then the boundary between
sovereignty submerged lands and privately owned uplands could
very well be under water and incapable of identification. The
ownership boundary line must be migratory by necessity of the
migratory nature of the physical boundary line.

The proper method for locating the OHWL is a matter of great
dispute in Florida right now. Two state agencies are preparing
to adopt OHWL rules. The Board of Trustees of the Internal
Improvement Fund, which is the Governor and Cabinet, held
workshops earlier this month on its proposed rule. Its proposed
OHWL rule would be based on its authority over state submerged
lands. The Board of Professional Land Surveyors has already
adopted an OHWL rule, based on its authority to adopt minimum
technical standards to guide surveyors. The Surveyors' rule has
been challenged by the Board of Trustees, and the matter will be
heard next week by a Hearing Officer for the State Division of
Administrative Hearings. There are substantial differences
between the rules proposed by the two entities. These
differences would greatly affect land titles, riparian rights,
and water boundaries in Florida.

Riparian ownership normally carries with it the right to exercise
riparian rights fishing, boating, swimming, etc. on the
entire water body and not just that portion abutting the riparian
owner's property.

A riparian owner has a common law right to drain surface water
from his lands into a natural lake or river, so long as he does
not divert the natural flow of the water, or raise or lower the
level of the water body to the injury of other uplands owners.
Stoer v. Ocala Mfq., Ice & Packing Co., 24 So.2d 579 (Fla. 1946).

Riparian rights may pass with conveyance of a leasehold interest.
For example, a riparian owner can lease uplands property, and the


lessee may conduct a water skiing school on the water body,
subject to reasonable rights of other riparian owners. Florio v.
State ex rel. Epperson, 119 So.2d 305 (2d DCA 1960).

Riparian rights cannot be separated from uplands without the
uplands owner's consent or without payment for the same.
Belvedere Development v. Dept. of Transportation, 476 So.2d 649
(Fla. 1985). (DOT condemned fee title to uplands, reserving to
condemnees all riparian rights. The court held that DOT must
compensate condemnees for riparian rights as these cannot be
severed from uplands without consent of the uplands owner.)

The public has the right to use navigable waters for swimming,
fishing and boating. These rights are protected under the Public
Trust Doctrine. See, for example, Holland v. Pierce Financing
and Construction Co., 157 Fla. 649, 27 So.2d 76 (1946); Ellis v.
Gerbing, 56 Fla. 603, 47 So. 353 (1908). These rights have been
greatly analyzed and discussed lately in the context of the
Marketable Record Title Act, and the Ordinary High Water Line.

Although the public has the right to use navigable waters, the
public does not have a right of access across riparian uplands to
navigable water bodies. If all the surrounding uplands are
privately owned and no private owner grants an easement, the
public does not have any means of getting to the waters to
exercise its rights of navigability, fishing, and swimming. This
is because the shore (ordinary high water line) is the landward
boundary of publicly owned land.

b. Surface Water Rights Non-navigable Water Bodies

surface water rights in non-navigable lakes or streams are
different. There are no "riparian rights", unless the uplands
owner also owns all or part of the lake bottom, Publix Super
Markets, Inc. v. Pearson, 315 So.2d 98 (2d DCA 1975), cert.
denied, 330 So.2d 20 (1976).

Rights in non-navigable lakes arise out of ownership of the lake
bottom, rather than ownership of the uplands. Ownership of a
portion of the bottom land of an artificial lake entitles the
owner to use of the waters overlying that portion; there is no
right to use the waters lying above the portion owned by someone
else. Anderson v. Bell, 433 So.2d 1202 (Fla. 1983). Along this
same line, the owner of bottom lands of a non-navigable water
body may deed or otherwise convey rights of use over his portion
to other parties owning another portion of the bottom lands,
thereby entitling each owner of a portion of the bottom lands to


use the entire water body. In turn, that grantee may lease his
rights of use pertaining to his bottom lands ownership, along
with the right to use of the entire water body, to a tenant or
tenants, so long as such use is reasonable. Silver Blue Lake
Apartments v. Silver Blue Lake Home Owners Association, 245 So.2d
609 (Fla. 1971).

There is a presumption that ownership of the bed of a non-
navigable water body goes with the adjacent upland. For a
stream, ownership usually goes to the middle thread of the

Ownership of all the uplands surrounding a natural or artificial
non-navigable water body carries with it exclusive use of the
water body. There are no other owners of bottom land, and the
public has no common law rights. There probably are other
instances of single ownership of a water body but probably none
so famous as the Ed Ball case. It is an example of common law
water rights that have been forgotten about in today's emphasis
on public use of waters. In 1933, Edward Ball bought all the
uplands bordering on the Wakulla Springs in Wakulla County. He
also purchased uplands on a portion of the Wakulla River which
flows from the Springs into the St. Marks River and then into
Apalachee Bay, an arm of the Gulf of Mexico. Mr. Ball
established a wildlife sanctuary on his land around Wakulla
Springs and built a lodge. The lodge and wildlife sanctuary were
operated by the Edward Ball Wildlife Foundation and the Wakulla
Silver Springs Company. Mr. Ball cleared vegetation and dredged
part of the river to allow passage of glass bottom boats. After
an alligator who was a resident of the Springs was found killed,
presumably by an unauthorized intruder, Mr. Ball closed off the
Springs and the Wakulla River headwaters with a fence. The
Florida Wildlife Commission approved the plan. For thirty years,
beginning with Governor Spessard Holland (1941-1945) every
governor approved the idea and wrote letters approving the
establishment of the wildlife park and the closing off of the

Then, an individual named Thomas A. Morrill sued Mr. Ball, the
wildlife foundation and the Wakulla Silver Springs Company, under
Florida's Environmental Protection Act of 1971, Section 403.412,
Florida Statutes. The Act authorizes private suits to protect
the air, water, and other natural resources of the state. Mr.
Morrill claimed that the springs and river were navigable waters
and thus, resources of the state protected under the Act. He
claimed that the dredging and fencing impaired the state's
natural resources.


The Circuit Court of Wakulla County determined that non-navigable
waters on private property belong to the landowner who can do
what he wants so long as he does not interfere with downstream
waters or public waters. The court ruled that the springs were
not navigable because of their small area, and the fenced portion
of the river was not navigable because it was suitable only for
transportation of canoes and very small craft as evidenced by
the dredging needed to allow passage of glass-bottom boats. The
non-navigable waters were not resources of the state under the
Environmental Protection Act. Mr. Ball had title to the bottom
of the river and springs, and his fence could remain. Thomas A.
Morrill v. Edward Ball, Case No. 401, Final Judgment (Circuit
Court of the Second Judicial Circuit, Wakulla County, June 29,
1973). The circuit court's decision affirming Mr. Ball's
ownership of the non-navigable springs and portion of the river
was upheld by the First District Court of Appeals. State Board
of Trustees of the Internal Improvement Trust Fund v. Ball, 300
So.2d 741 (1st DCA 1974).

C. Surface Water Rights Diffused Surface Water

Florida's common law also recognizes that each and every owner of
land, even non-riparian land, has certain rights regarding
diffused surface water. This is water that flows without any
defined channel. It may be simply stormwater.

The common law rule is that an owner of higher lands has a
servitude on lower lands to discharge naturally occurring surface
water. This servitude extends only to natural flow and cannot be
increased by man. The upper owner also cannot divert the flow of
naturally occurring surface water. New Homes of Pensacola, Inc.
v. Mayne, 169 So.2d 345 (1st DCA 1964); Seminole County v. Mertz,
415 So.2d 1286 (5th DCA 1982).

D. Remedies for Interference with Surface Water Rights

The common law not only established rights in surface water; it
also provided remedies that are still viable. Interference with
common law surface water rights may be remedied through
injunction on the basis of nuisance or trespass; damages for
trespass; or, in the appropriate case, actions for inverse

For example, a riparian owner's remedy for interference with his
exclusive right of access would be an action in trespass. A
riparian owner could bring an action for injunction if his right


to an unobstructed view of the water is violated.

An owner of non-navigable bottom land whose exclusive right to
use all or part of the overlying water is violated could also
allege trespass and request an injunction. The bottom land owner
may file an action to quiet title if necessary or an action for
damages for conversion of any valuable products taken from the
soil or water.

Interference with surface water flow may be a nuisance (one
landowner's use of his property interferes with other landowner's
use and enjoyment of his property). Intent, degree of care, or
negligence is not an essential element of an action for nuisance.
A nuisance usually is a continuing act or situation. Injunction,
or damages in the appropriate case, may be sought as a remedy for
pollution of a water body; excessive withdrawals from or
additions to a water body; diversion of a water body; or
increases in or diversion of natural diffused surface water.
Brumley v. Dorner, 83 So. 912 (Fla. 1919); Edason v. Denison, 194
So.342 (Fla. 1940); stoer v. Ocala Mfg., Ice & Packing Co., 24
So.2d 579 (Fla. 1946); New Homes of Pensacola, Inc. v. Mayne, 169
So.2d 345 (1st DCA 1964); Seminole County v. Mertz, 415 So.2d
1286 (5th DCA 1982).

An unnatural increase in surface water flow may be a trespass
(use of another's land without permission). A true trespass
involves a forcible or direct unauthorized entry onto another's
land, with intent or negligence. A trespass usually is a single
act or acts, although there may be a continuing trespass.

An action for inverse condemnation may be an appropriate remedy
when the state or some other body with eminent domain powers:

1. Fills in natural drainage areas, thereby
causing flooding;

2. Obstructs natural flow of channelized
diffused surface water, causing flooding;

3. Changes natural drainage patterns by,
for example, constructing a roadway;

4. Raises lake levels by raising the grade
of a road or by constructing dams; or

5. Negligently constructs a drainage system,
causing flooding.


~ _

Generally, inverse condemnation is appropriate only when there is
a permanent invasion of the property (this requirement may be
fulfilled by the fact that the property floods whenever it
rains), rendering the property useless. See Arundel Corporation
v. Griffin, 103 So.422 (Fla. 1925); State Road Department v.
Tharp, 1 So.2d 868 (Fla. 1941); Poe v. State Road Department, 127
So.2d 898 (1st DCA 1961); Dudley v. Orange County, 137 So.2d 859
(2d DCA), app. dism. 146 So.2d 379 (Fla. 1962), cert. denied, 372
US 959 (1963); Kendry v. State Road Department, 213 So.2d 23 (4th
DCA 1968), cert. denied, 222 So.2d 752 (Fla. 1969); Elliott v.
Hernando County, 281 So.2d 395 (2d DCA 1973); Thompson v. Nassau
County, 343 So.2d 965 (1st DCA 1977); D.O.T. v. Burnette, 384
So.2d 916 (1st DCA 1980); Leon County v. Smith, 397 So.2d 362
(1st DCA 1981); Hillsborough County v. Gutierrez, 433 So.2d 1337
(2d DCA 1983).

E. Ground Water

Turning to ground water: there are many similarities between the
common law rights associated with surface water, and those
associated with ground water. Both surface water rights and
ground water rights are usufructory rights to use rather than
to own or possess. Because of water's inherent migratory nature,
neither surface water nor ground water is amenable to possession.
In the case of a privately owned lake, you might say that the
water itself can be possessed or owned. However, in a non-
navigable or navigable water body not owned entirely by one
person, each "owner" can only use the water to the extent his use
does not harm other owners.

Even in the case of the privately owned lake, the only reason you
might say that the water itself is possessed or owned is because
the water has been captured. Similarly, ground water may be the
subject of ownership once it is reduced to possession. A land
owner can own, and convey, water he has captured; but a landowner
cannot own or convey free flowing ground water. See Village of
Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla. 1979), cert.
denied 100 S.Ct. 453 (1979). The United States Supreme Court has
held that ground water, upon its capture, is an item of commerce
that is protected under the Commerce Clause of the U.S.
Constitution. Sporhase v. Nebraska ex rel. Douglas, 102 S.Ct.
3456 (1982). (Sporhase involved Nebraska law, which, like
Florida common law and statutory law, applies a reasonable use
rule to ground water withdrawal; an overlying owner may use
ground water so long as it does not unreasonably interfere with
the equal rights of neighboring landowners.)

Like surface water rights, ground water rights have their source
in land ownership. This is an unpopular view in the current
climate which says ground water is a public resource that has
nothing to do with ownership of the overlying land. The Public
Trust Doctrine, however, does not apply to ground water. An
overlying landowner at common law had the right to make
reasonable withdrawals of ground water, subject to equal rights
of neighboring landowners. Cason v. Florida Power Co. 76 So.535
(Fla. 1917); Koch v. Wick, 87 So.2d 47 (Fla. 1956); Labruzzo v.
Atlantic Dredging & Construction Co., 54 So.2d 673 (Fla. 1971).
There are no reported Florida cases directly addressing the
validity of a conveyance of whatever common law rights the
overlying landowner may have to withdraw and use ground water.
In this regard, looking only at the common law, there is no
distinction between surface water rights and ground water rights;
if the landowner wishes, he can convey those rights separate from
land ownership.

Under the common law in Florida, the relationship of overlying
landowners is similar to the relationship among riparian owners.
Each owner has the right to use ground water for beneficial
purposes that have a reasonable relationship to the use of the
overlying land. Unreasonable use of the overlying land may
affect a neighboring landowner's ground water rights. For
example, negligent excavation or pouring of concrete may affect
ground water flows, as in the flow of a spring. Labruzzo v.
Atlantic Dredging & Const. Co., 73 So.2d 228 (Fla. 1954).

The common law also protected water quality; there was a common
law right to unadulterated ground water:

"To suffer filthy water, says Foster, J.,
in Ball v. Nye, "to percolate or filter
through the soil into the land of a contiguous
proprietor, to the injury of his well and
cellar, where it is done habitually and within
the knowledge of the party who maintains the
vault, whether it passes above ground or below,
is of itself an actionable tort. Under such
circumstances the reasonable precaution which
the law requires is, effectually to exclude
the filth from the neighbor's land; and not to
do so is of itself negligence."

99 Mass. 582, 584; quoted in J. Gould, A Treatise on the Law of
Waters (3d Ed. 1900).

Interference with ground water rights may be remedied by

injunction or damages. Common law remedies survived the passage
of the 1972 Water Resources Act. These remedies have been used
by Pinellas County in its battle against the Martin Brothers.
Pinellas County owns and operates the Eldridge-Wilde Wellfield
near the Hillsborough County line, on property owned by the
Wildes and leased to the County. Pinellas County claims that
operation of two borrow pits, one bordering the wellfield and the
other one-half to three-fourths of a mile away from the
wellfield, have (or will have) the effect of dewatering the wells
that produce public supply water. Pinellas County also alleged
that the borrow pits had changed the flow of surface wter and the
natural drainage pattern, and were contaminating the aquifer.
This case provides many examples of the common law rights and
remedies that co-exist with Florida's statutory scheme of water



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