may not have their flows altered by more than 1Q% at the
time and point of withdrawal (except for dams). Lakes and
impoundments may not have their levels lowered more than
-N one foot, and the water table may not be lowered by more
S than three feet where the land is not owned, leased or
otherwise controlled by the applicant. The governing
board may grant exceptions where all data, including eco-
nomic data, shows the activity to be consistent with the
public interest.385 Conditions may be placed on any
(c). St. Johns River Water Management District
The SJRWMD only regulates surface water works in the
areas transferred to it by the SFWMD in January of 1977.387
These areas are regulated in substantial conformity to the
rules and regulations discussed above in regard to the
C. The Vested Rights Problem
If common-law allocation rules have created "vested
rights" on behalf of property owners, the abrogation of
these rules by legislation such as the Florida Water Re-
sources Act may cause constitutional problems. Although
a number of eastern states have modified the common-law
system of water rights, so far there have been no direct
challenges to the constitutionality of these statutory
permit systems. However, with the exception of
Florida and Iowa, these regulatory schemes are not very
comprehensive or restrictive. Thus, the remarkable
i. -, ---A
absence of litigation on this issue does not mean that
constitutional challenges may not be brought in the
1. The Taking Issue
The solution to the vested rights problem requires an
inquiry into the nature of the rate's police power upon
which water rights legislation, like other regulations,
is ultimately based. The state may regulate private prop-
erty through the exercise of its police power, but these
restrictions must bear a rational relation to the safety,
health, morals or general welfare of the community. In
addition, the exercise of the police power must be reason-
able and not arbitrary or oppressive. Otherwise, the
regulation is regarded as a taking of property without
due process of law. American courts generally follow one
Sof two approaches: the "dimunition in value" test and
* the "residual beneficial use" test391 To a large extent,
the difference between the two approaches is a matter of
judicial perception; one court might view the glass as
;. being half-empty, another, half-full. Under the
"dimunition in value" approach, the court looks to the
potential value of property and measures the loss in-
curred as a result of regulation. Adoption of this
approach usually indicates a restrictive judicial atti-
tude toward land use control and will often result in a
determination that a taking has occurred. When the
dimunition in value "reaches a certain magnitude, in most
if not all cases there must be an exercise of eminent domain
and compensation to sustain the act."393 No clear standard
exists, however, for determining how great the dimunition
must be. Indeed, courts adopting the dimunition test have
upheld regulations resulting in extensive losses without
requiring public compensation.394
Other jurisdictions, including Florida, emphasize the
beneficial uses remaining to a landowner under a given
regulation. If some beneficial use to which the property
may be reasonably adapted exists, these courts normally
will reject a taking claim.395 In recent years, the
"residual beneficial use" approach has tended to expand
considerably the permissible scope of land use regulation.
This tendency is especially pronounced if disputed regula-
tions have been imposed for purposes of flood control and
environmental protection. Indeed, a number of flood
plain zoning cases have allowed complete prohibition of
development without requiring the state to compensate the
affected landowner. Emphasizing the magnitude of public
harm prevented by these restrictions, courts have regarded
beneficial uses such as agriculture or recreation suffici-
cient to avoid a compensable taking.397
Another approach is the "public rights" test which
combines an expanded notion of public rights with a pre-
sumption that the needs of the public out weigh any burden
imposed on an individual landowner.398 The leading case
is Just V. Marinette County, which upheld restrictions
I I ~- ... .~ ._... .~,. ~
on dredge and fill operations in wetland areas contiguous
to navigable waters. The court distinguished between re-
strictions designed to prevent harm to the public and those
intended to secure a benefit not presently enjoyed by the
public: Compensation would not be required in the former
instance, though it might be in the latter. In Just, the
court concluded that the wetlands protection regulations
merely prevented a harm and, therefore, did not constitute
a taking of property even though the value of the plaintiff's
land for development purposes was substantially reduced.
2. The Taking Issue in Florida
The prohibition against an uncompensated taking by the
state arises not only from the fifth amendment, but in
Florida, from Article X, Section 6(a) of the 1968 Con-
stitution as well.400 The older Florida cases employed an
invasion theory and required "a trespass upon or a physical
invasion of the abutting property" to constitute a taking.401
More recent Florida cases emphasize the beneficial uses
remaining to a landowner under a given regulation. The
test for determining how much value must be lost to the
landowner before police power limits are exceeded has been
stated as follows in Forde v. City of Miami Beach:
Property owners must show that the appli-
cation of the zoning ordinance has the
effect of completely depriving them of
the beneficial use of their property by
precluding all uses or the only use to
which it is reasonably adapted, or that
the ordinance has invaded their personal
or property right unnecessarily or un-
reasonably in violation of the Federal
or Florida Constitution.403
~YYLl~~i~ .. I..rl ;ix;i~io L~r~ii;x~i-;j: .i..;.....~ ~C~
In that case, the court determined that the subject prop-
erty was unfit for the purpose to which it was restricted
(single family dwellings), and that to continue the re-
striction would be to exceed the police power limitation
and result in a taking without compensation.404
In Moviematic Industries Corporation v. Board of
County Commissioners of Metropolitan Dade County,405 the
plaintiff corporation argued that a county resolution which
rezoned an area over the Biscayne Bay Aquifer from heavy
industry to single family had no reasonable relation to
health, safety, or welfare, and was thus an unreasonable
restriction of its beneficial use and amounted to a taking.
Both the trial court and the Third District Court of Appeals
rejected that argument in finding that preservation of an
adequate drinking water supply and ecological system are
clearly within public health objectives and, in fact, long
overdue. The court declared that the public interest must
prevail when it becomes necessary to balance private and
public interests.406 Because alternate development was
available and plaintiff had not tried to develop the area
prior to the rezoning, the court could find no taking.407
Another recent Florida decision, Askew v. Gables-by-
the-Sea, arose from a resolution by the Board of Trust-
ees of the Internal Improvement Trust Fund prohibiting
dredging pursuant to a preexisting permit unless dredging
operations had already begun. One developer, Gables-by-
r~`""~; "~- -" '"'-~~~*"'`~~PIL i----li-i, u_~.iri^i-)l- Ir- i~
the-Sea, had 220 days remaining on its permit, but was
denied permission to dredge because operations were not
begun prior to the adoption of the resolution. In find-
ing for the developer, the Court held that the corporation
had been denied the right to use its bottomland in the
only way it could be of any val'", and ordered the State
to pay the corporation for the right to prohibit dredge
and fill activities. The First District Court's find-
ing that a taking had occurred under these facts is not a
move away from recognition of the State's great interest
in sovereignty lands below navigable waters. Rather, the
holding was a reasonable one because of the injustice that
would have resulted if the developer had been denied the
right to develop the submerged lands he had recently pur-
chased from the State.
Another recent holding is Estuary Properties, Inc. v.
Askew.410 In that case, the property owner sought zoning
to develop approximately 6,500 acres in Lee County. The
proposed development would have destroyed about 1,800
acres of black mangroves. The developer concurrently
filled an application with the Southwest Florida Regional
Planning Council and Lee County for developmental approval.
The Council expressed concern about destruction of the
black mangroves, and recommended that the application be
denied. After a series of public hearings, Lee County
denied both the proposed rezoning request and the applica-
tion for development approval.411
E~C~ULL----- ~B~Pil-~l~rdLelCC 1 rj iul~WI~L~ ~-L~-. I(L~ 1 ~dL~S~F~aLi~h. _II- 1RillWk~ .r
The property ?n er appealed the developme order to
the Land and Water Adjudicatory Commission which is com-
prised of the Governor and Cabinet. The case was assigned
to a hearing officer who conducted a de novo review. The
hearing officer concluded that the proposed development
would have an adverse impact on the ecology and economy
of the area and recommended denial of the appeal. The
Land and Water Adjudicatory Commission agreed. On appeal,
however, the district court held that the restriction of
development rights upon alleged environmentally sensitive
land constituted a "taking" of real property without just
compensation in violation of the Florida Constitution.
According to the court:
This principle is universally accepted in
more traditional contexts of governmental taking
and is, in fact, the essence of constitutional
property rights. The true constitutional issue
in this case is whether there has been a taking
of Petitioner's property rights, not whether
the public benefits of preserving mangrove wet-
lands outweigh the private injury to Petitioner.
The Ajudicatory Commission has failed to indicate
any meaningful changes in the proposed development
that would enable Petitioner to make an eco-
nomically beneficial use of its land and, in fact,
observed that" once the hearing officer
decided against the construction of the inter-
ceptor waterway and the mangroves, there were no
changes possible within the record,,to make the
development eligible for approval. 412
Thus, the landowner was entitled to proceed with his proposed
development unless the government was prepared to compensate
him for the taking of his property.
3. Cases from the Western States
Although there are no cases from eastern jurisdic-
tions on the constitutionality of restricting the exercise
of common-law water rights, decisions from the western
states provide some guidance. Most of these cases, which
involve the validity of replacing riparian rights with
prior appropriation, arose in states where riparian rights
had been recognized before the prior appropriation system
was adopted. In addition, some of t.,e most recent cases
involve the replacement of common-law ground water doc-
trines with statutory permit systems based on prior
Lux v. Haggin, a California decision, was one of
the first cases to consider the status of riparian rights
in a prior appropriation jurisdiction. In the Lux case
the court held that the riparian doctrine had become part
of California law as a result of the state's adoption of
the common-law when it was admitted to the Union and de-
clared that the riparian owner was entitled to the full
natural flow of the watercourse. The court also declared
that this right attached to the land and was not created
by use nor lost by nonuse. Finally, the court held that
the legislature could not authorize appropriations which
interferred with these rights unless the riparian owners
P Nevertheless, many western states have abrogated un-
exercised common-law water rights without compensation.
For example, Kansas did so in 1945 when it enacted a com-
prehensive prior appropriation statute. Litigation arose
over this statute when the state's chief engineer granted
a permit which allowed an irrigation district to divert
water for use on nonriparian land in such a manner as to
diminish substantially the flow available to downstream
riparians. The riparian owners argued that the Act was
unconstitutional interference with vested property rights.
However, the Kansas Court upheld the statute in State ex
rel. Emery v. Knapp, concluding that the legislature
had the power to modify or reject the doctrine of riparian
rights if it was unsuited to conditions in the state and
adopt the doctrine of prior appropriation. Moreover,
it hold that a landowner had no vested right in underground
waters underlying his land which he has not appropriated
and applied to beneficial use.416
Litigation also arose in the West when a number of
states abolished the traditional ground water doctrines in
favor of a statutory allocation system based on prior
For example, South Dakota's statute was challenged in
Knight v. Grimes. The plaintiff had only irrigated a
small part of land with ground water prior to the effective
date of the statute. When he sought to increase his water
use he was required to obtain a permit to appropriate addi-
tional water. Under the permit his right to the additional
water would have been subordinate to existing users. The
plaintiff instead brought suit, contending that he had a
vested right to the underlying ground water. The court up-
held the appropriation statute, observing that since common
law water rights were not property in the constitutional
sense, water use doctrines could be modified or rejected
entirely without constituting a taking of property. In
addition, the court declared that even if water rights
were regarded as vested property interests, they were
still subject to regulation under the police power if re-
quired by the general welfare.418
A similar controversy occurred in North Dakota where
a 1955 Act made ground water available for appropriation.
In Vokmann v. City of Crosby,419 the court declared that
presently exercised uses of precolating ground water were
vested in the overlying landowner and held that the plain-
tiff's vested water rights were superior to those of one
who made a subsequent appropriation under the 1955 Act.
Nevertheless, the same court in Baeth v. Hoisvenn420 held
that unused rights to ground water were not protected from
appropriation pursuant to the Act, and that the state in
r. the exercise of its police power make unused ground water
available to appropriators without impairing the property
rights of surface owners.
The taking issue also arose in Idaho in Baker v. Ore-
Ida Foods, Inc., where a senior appropriator sued to
prevent a junior appropriator from withdrawing ground water
in excess of the annual recharge rate. Idaho's ground
water appropriation statute prohibited such "mining" of
the resource. In response, the junior appropriator argued
that the court should apply the common law correlative
rights rule, under which each overlying landowner is en-
titled to a pro-rata share. The court, however, rejected
this argument even though it conceded that the correlative
rights doctrine might have applied at one time in Idaho.
In the court's words "[t]he doctrine of correlative rights
is repugnant to our constitutionally mandated prior ap-
propriation doctrine."422 In effect, the court held that
any allocation rights a landowner formerly possessed under
the correlative rights doctrine had been validly abrogated
by passage of the appropriation statute.
These and other western cases support the following
principles: First, conservation of the state's water
resources is an appropriate area of legislative concern.
Second, common law doctrines of judicial origin are not in-
flexible, but may be modified within limits, as warranted
by changing economic and social conditions. This applies to
both surface water424 and ground water 425 doctrines.
Third, in the interests of promoting the efficient use of
the state's water resources, the legislature may extinguish
riparian rights which are not being exercised.426 Unused
common law rights to ground water can likewise be terminated
without compensation.427 Fourth, although common law
rights may be terminated, presently exercised water uses
are "vested rights" which cannot be completely destroyed
by the legislature without compensation.428
4. Vested Rights and the Florida Water Resources Act
Although the constitutionality of the Florida Water
Resources Act has not been directly challenged, the Florida
Supreme Court's recent decision in Village of Tequesta v.
Jupiter Inlet Corporation429 indicates that the state can
extinguish unexercised common-la'. water rights without
compensation. The case arose when the Jupiter Inlet Cor-
poration brought an inverse condemnation action against
the City of Tequesta for depriving it of the beneficial
use of its property rights in the shallow-water aquifer
beneath its land. The city, under the terms of a permit
issued by the South Florida Water Management District, was
pumping more than a million gallons a day from the aquifer
to supply its residents with water. Jupiter, which owned
property near one of Tequesta's well fields, planned to
build a condominium project on its land. However, Jupiter
was not allowed to withdraw water from the aquifer because
Tequesta's withdrawals had created a salt-water intrusion
problem. Instead, the only means by which Jupiter could
supply water to its property was to drill a well to the
Floridan aquifer, located 1200 below the surface, at a
substantially greater cost. The trial court held in
favor of Tequesta, but the immediate appellate court re-
versed and certified the question to the Florida Supreme
According to the Court, Florida recognized the rea-
sonable use rule with respect to percolating ground water,
-YI--I:;n~*~)LIIIII~-~.. _, i I X 1XI i.-^- "" ~'~ '.'.' "~
but had never considered the meaning of "ownership" as
applied to such waters. However, the Court agreed with
the rule in other jurisdictions that the right of the
owner to ground water underlying his land was a usufructory
one and did not include a proprietary interest in the corpus
of the water itself.431
Moreover, Jupiter had not acquired any rights under
the Florida Water Resources Act. This conclusion rested
on the Statute's distinction between exercised and un-
exercised common-law water rights. Landowners who were
withdrawing water on the effective date of the Act were
required to convert their common-law water rights into
permit water rights in accordance with the procedures of
section 373-226(3). Otherwise the right was abandoned
and extinguished, requiring a new application for a per-
mit. On the other hand, as the Court observed, "The
Florida Water Resources Act makes no provision for the con-
tinuation of an unexercised common-law right to use water."
In the Court's words, "Jupiter had perfected no legal
interest to the use of the water beneath its land which
would support an action in inverse condemnation.
only had Jupiter lost its unperfected rights under the
common-law allocation rules, it could no longer acquire any
right to withdraw water except by obtaining a permit from
the Water Management District.
Tequesta was not required to compensate the plaintiff
since its activities did not constitute a physical invasion
-L~ra~~ ..,. I
of Jupiter's property nor Hid they destroy the plaintiff's
right to the use of his land. The additional costs Jupiter
incurred because it was forced to drill a deep well were
characterized as "consequential" and, therefore,
To the extent that it uphol's the right of the state
to abrogate unexercised common-law water rights the
Teguesta case is consistent with the decisions, discussed
earlier, from western jurisdictions. A more difficult
question is whether the state can limit the rights of per-
mit holders who were withdrawing water at the time the
Florida Water Resources Act became law. Although the
Court in Tequesta did not address itself to this issue
specifically, it did suggest that some regulation of water
users was permissible:433
Legislation limiting the right to the use of
the water is in itself no more objectionable
than legislation forbidding the use of prop-
erty for certain purposes by zoning
In addition, the Court acknowledged that the state
could substitute one form of water rights form another when
it characterized the procedure under section 373.226(3) as
a "transitional procedure." In effect, that is what hap-
pened in many western states when they replaced their
common law ground water rules with a prior appropriation
system. Existing ground water uses were quantified and
converted into appropriative rights.
--II~b" J --~ b '"-liiiI r~ ;""" '-'
--~---- --bn ~-- ----
However, while common law rights were exchanged for
permanent appropriative rights in the West, the owner of
such rights in Florida merely obtains a permit right of
limited duration. Arguably, the loss that he has suf-
fered on the transaction may represent a taking of prop-
erty without due process.
If an existing water use was terminated by denial or
nonrenewal of a water use permit, the validity of the agency's
action in that particular case would probably depend on the
court's choice of a taking test. Even under the public
rights test of Just v. Marinette County, discussed earlier,
presently exercised water rights would probably be entitled
to protection. If the court applied the more conventional
diminution-in-value test, it would have to determine the
extent of actual harm that a landowner suffers when common
law water rights are restricted or completely abrogated.
Since common-law water rights in Florida are not transfer-
able, the value of a water right must be measured primarily
in relation to a particular tract of land. Thus, if a
water right was completely destroyed, we would look at the
diminution-in-value not of the water right itself, but the
land to which it is appurtenant. For example, in an area
where irrigation is necessary, loss of a common law water
right might virtually destroy the value of a farm. If
the farm was not suitable for some other productive use,
the diminution in value as a result of the regulation would
^n .L Ull -
probably be sufficient to constitute a taking. In cases
where the regulatory agency forced a permit holder to obtain
his water from a more distant source of supply, the courts
might also treat the capitalized cost of obtaining water
from this new source as a diminution-in-value. No doubt in
some instances this sum would be large enough to require
II I I / I Il ll -. .. .... ..". .
-, ..:- ". t- r-' ,
365. Id., at" 0-11.
366. Id., at 9.
367. 6 Fla. Admin. Code 16K-4.021(2).
368. Fla. Stat. S 373.413(1) (1979).
370. Fla. Stat. S 373.413(1) (1979).
371. 6 Fla. Admin. Code 16K-4.022.
372. 6 Fla. Admin. Code 16K-4.022(b)(3).
373. Permit Information Manual, supra note 360, n.20 at 29.
374. 6 Fla. Admin. Code 16J, at 29.
376. Id., at 6.
377. Permit Information Manual, supra note 360, Appendix 1-3.
378. Compare Fla. Admin. Code 16-J with Fla. Stat. ch. 373,
Part IV (1979).
r~ .;i. ...._~.........j 1Li --i~-L*Uyi I y
379. Interview with Mr. Dale Hardin, permitting staff, South-
west Florida Water Management District (Sept. 7, 1979).
380. 6 Fla. Admin. Code 16J-4.04.
383. 6 Fla. Admin. Code 16J-4.06.
387. 6 Fla. Admin. Code 161-4.
389. See generally Ausness, Water Use Permits in a Riparian
State: Problems and Proposals, 66 Ky. L.J. 191, 240-252
(1977). An oblique challenge to Wisconsin's permit
system, however, was made in Omernick v. State, 218
N.W. 2d 734 (Wis. 1974) and Omernick v. Department of
Natural Resources, 238 N.W. 2d 114 (Wis. 1976).
390. See generally Berger, A Policy Analysis of the Taking
Problem, 49 N.Y.U.L. Rev. 165 (1974); Sax, Takings,
Private Property and Public Rights, 81 Yale L.J. 149
(1971); Van Alstyne, Taking or Damaging by Police Power:
The Search for Inverse Condemnation Criteria, 44 S. Cal.
L. Rev. 1 (1971).
391. Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 15
N.E.2d 587 (1938), is generally regarded as the classic
articulation of the residual use test.
392. See, e.g., Dooley v. Town Plan & Zoning Comm'n, 151 Conn.
304, 197 A.2d 770 (1964), in which a local flood plain
ordinance prohibiting residential development was
declared a taking despite the fact that such uses as
marinas, clubhouses, recreation, and agriculture were
permitted. The Dooley decision should be distinguished
from a pure dimunition in value case, however, for the
court indicated that the entire purpose of the zoning
"contemplates a dimunition in land value and subsequent
acquisition by some government agency." Id, at 310, 197
A.2d at 773. See also State v. Johnson, 265 A.2d 711,
716 (Me. 1970), in which the Maine supreme court over-
turned the state's.wetlands regulation as applied on the
ground that it unduly diminished the value of the land-
393. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
394. See, e.g., Goldblatt v. Town of Hemstead, 369 U.S. 590,
594 (1962), in which the Supreme Court adopted the
dimunition test but declared that "a comparison of
values before and after [regulation] is by no
means conclusive" to the taking issue. See also
Candlestick Properties, Inc. v. San Francisco Bay
Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 572,
89 Cal. Rptr. 897, 90G (1970), which found no impermissible
dimunition resulting from prohibition of coastal develop-
395. See Ocean Villa Apartments, Inc. v.
70 So.2d 901 (Fla. 1954).
396. See Plater, The Taking Issue in a Na
Floodlines and the Police Power, 52
397. See Turnpike Realty Co. v. Town of D
City of Ft. Lauderdale,
Tex. L. Rev. 201,
edham, 284 N.E.2d
891 (March. 1972), cert. denied, 409 U.S. 1108 (1973);
Turner v. County of Del Norte, 24 Cal. App. 3d 311,
101 Cal. Rptr. 93 (1972).
398. Comment, Regulation o. Land Use: From Magna Carta to
a Just Formulation, 23 U.C.L.A.L. Rev. 904, 923-31 (1976).
399. 201 N.W. 2d 761 (Wis. 1972).
II-: *--.. -,--..--rrr.~_._ III I -- .... .-..1-~ ~-~~-~.il
~4~ ~1~PT*W~ ~ ~dAPb *~pY4li~ .;~L3
400. Section 6. Eminent domain.--(a) No private property shall
be taken except for a public purpose and with full com-
pensation therefore paid to each owner or secured by
deposit in the registry of the court and available to
401. Seldon et al. v. City of Jacksonville, 10 So. 457 (1891).
402. For an excellent discussion of the residual beneficial
use test to determine when land use regulation becomes
a compensable taking, see F. Maloney, A.J. O'Donnell,
Drawing the Line at the Oceanfront: The Role of Coastal
Construction Setback Lines in Regulating the Development
of the Coastal Zone, 30 U. Fla. L. Rev. 383 at 399-403
403. 1 So.2d 642 (Fla. 1941).
404. Id. at 646-7.
405. 349 So. 2d 667 (3d DCA 1977).
406. Id. at 670, citing Nattin Realty, Inc. v. Ludewig, 324
N.Y.S. 2d 668 at 671 (1971).
407. The Court did not preclude future compensation if the
plaintiff could show deprivation of his beneficial use
for public benefit.
i [ i i[ I i i i
408. 333 So. 2d (1st DCA 1976).
409. Id. at 61.
410. So.2d (Fla. 1st D.C.A., Case No. 11-419 filed
December 17, 1979).
411. Id. at page 6 of slipsheet opinion. Lee County
recommended that an amended zoning application be filed
which would permit a density of two units per acre (one
unit per acre was permitted) and which would cluster
the residential and incidental commercial uses on
acreage not deemed environmentally sensitive.
412. The district court elected not to address the question
of whether the Adjudicatory Commission's order contained
competent substantial evidence to support its environ-
mental findings. Further, the property owner's vested
rights argument was rejected by the court, as was the
constitutional attack upon S 380.06(8).
413. 10 P. 674 (Cal. 1886).
414. See generally Scurlock, Constitutionality of Water
Rights Regulation, 1 Kan. L. Rev. 125, 139 (1952).
415. 207 P.2d 440 (Kan. 1949). See also Baumann v. Smrha,
* 145 F. Supp. 617 (D. Kan.), aff'd per curiam, 352 U.S.
863 (1956); Williams v. City of Wichita, 374 P.2d 578
(Kan. 1962). 327
416. 207 P.2L 40, 448 (Kan. 1949).
S417. 127 N.W. 2d 708 (S.D. 1964).
418. See generally note, Water Rights and the Constitutionality
of the 1955 South Dakota Water Act, 11 S.D.L. Rev. 374
419. 120 N.W. 2d 18 (N.D. 1963).
420. 157 N.W. 2d 728 (N.D. 1968).
421. 513 P.2d 627 (Idaho 1973).
( 422. Id. at 635.
423. California-Oregon Power Co. v. Beaver Portland Cement
Co., 73 F.2d 555 (9th Cir. 1934); Southwest Eng'r. Co.
v. Ernst, 291 P.2d 764 (Ariz. 1955); Williams v. City
of Wichita, 374 P.2d 578 (Kan. 1962); Baeth v.
Hoisveen. 157 N.W. 2d 728 (N.D. 1968); Knight v. Grimes,
127 N.W. 2d 708 (S.D. 1964).
424. In re Hood River, 227 P. 1065 (Ore. 1924); Omernick v.
Department of Natural Resources, 238 N.W. 2d 114 (Wis. 1976).
425. Baumann v. Smrha, 145 F. Supp. 617 (D. Kan. 1956);
SBaker v. Ore-Ida Foods, Inc. 513 P.2d 627 (Idaho 1973);
Williams v. City of Wichita, 374 P.2d 578 (Kan. 1962);
Knight v( rimes, 127 N.W. 2d 708 ( 1964).
426. McCook Irrigation & Water Power Co. v. Crews, 96 N.W.
996 (Neb. 1903); Belle Fourche Irrigation Dist. v.
Smiley, 176 N.W. 2d 239 (S.D. 1970).
427. Baumann v. Smrha, 145 F. Sitpp. 617 (D. Kan. 1956);
Baeth v. Hoisveen, 157 N.W. 2d 728 (N.D. 1968).
428. Herminghaus v. Southern Cal. Edison Co., 252 P. 607
(Cal. 1926); Lux v. Haggin, 10 P. 674 (Cal. 1886);
Clark v. Cambridge; Arapahoe Irrigation & Improvement
Co., 64 N.W. 239 (Neb. 1895); Volkmann V. City of
Crosby, 120 N.W. 2d 18 (N.D. 1963); St. Germain
Irrigating Co. v. Hawthorn Ditch Co., 143 N.W. 124
(S.D. 1913); Neilson v. Sponer, 89 P. 155 (Wash. 1907).
429. 371 So. 2d 661 (Fla. 1979).
430. 349 So.2d 216 (4th D.C.A. Fla. 1979).
431. 371 So.2d at 667.
432. Id. at 671.
433. Id. at 670.