BLAIN & CONE, P. A.
L. M. BLAIN 202 MADISON STREET
THOMAS E. CONE. JR. P. O. BOX 399
RUSSELL M. BLAIN TAMPA. FLORIDA 33601
GARY A. GIBBONS (813) 223-3888
FRED A. McCORMACK
September 1, 1981 206 SOUTH MONROE STREET
OF COUNSEL P. 0. BOX 10449
GEORGE O. WILSON III TALLAHASSEE. FLORIDA 32301
REPLY TO: Tampa D
The Honorable Victoria J. Tschinkel, Secretary
Florida Department of Environmental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
Re: State Water Policy Property Rights
Dear Secretary- Tschi-nkef-:
Enclosed is a memorandum we have prepared for your use in connection
with this matter. It is intended to provide you with information
concerning the rights of a property owner to make use of water beneath,
on, or adjacent to his land before and after the Florida Water Resources
Act of 1972.
As mentioned in our previous correspondence, the Southwest Florida
Water Management District favors inclusion of a policy statement
relating to the rights of property owners. We feel the proposed
policy statement attached to our memorandum is a restatement of
existing law. As a result, we foresee no consequences flowing from
its adoption as part of the State Water Policy.
Let us know if further information will be helpful.
Si ce ly yours,
This memorandum is submitted on behalf of the Southwest
Florida Water Management District in support of the proposed
statement concerning property rights and water, a copy of which
has been attached.
I. PRIOR TO THE ADOPTION OF THE FLORIDA WATER RESOURCES ACT OF
OF 1972, DID LAND OWNERS OWN THE WATER ON OR BENEATH THEIR
The Florida Supreme Court recently addressed this question
insofar as percolating ground water is concerned. The case,
Village of Tequesta vs. Jupiter Inlet Corporation, 371 So.2d 663,
Fla.1979) concerned an action for inverse condemnation by a property
owner against a nearby municipality for depletion of shallow-water
aquifer beneath the property owner's land. The property owner
contended that depletion of the shallow-water aquifer effectively
deprived it of the beneficial use of its property rights and claimed
compensation for the loss.
During the course of the opinion, the court traced the origin
and development of the Florida position concerning ownership of
percolating ground waters. The Court stated that ancient law gave
no special consideration to ground water, treating all water like
the air, the sea, and wild animals, as the property of no one or the
property of everyone. Ibid. Page 666. An early "English rule" was
developed based upon the maxim "to whomsoever the soil belongs, he
owns also to the sky and to the depths." This "English rule" was
a rule of absolute ownership, under which any property owner could
extract an unlimited quantity of percolating ground water and use
it on overlying or distant lands, regardless of injury to adjacent
land owners. Florida Water Law, 1980, F. Maloney, S. Plager, R.
Ausness, and B. Canter, Page 45 (1980)(hereinafter referred to as
Florida Water Law, 1980). The Court stated that this rule of
absolute ownership was repudiated in most American jurisdictions.
Instead, an "American" or "reasonable use" rule was developed in
the Eastern states which rejected the "to the sky and to the depths"
notion for another maxim, to wit: "use your own property so as not
to injure that of another." Village of Tequesta, at Page 666.
The Court concluded that the overlying owner never had a property
or proprietary interest in the corpus of the percolating ground water
at common law. Ibid., at Page 667. There is instead, a "right of use"
as it passes, but there is no ownership in the absolute sense. It be-
longs to the overlying owner in a limited sense, that is, he has the
unqualified right to capture and control it in a reasonable way with
an immunity from liabilities to his neighbors for doing so. Only
when it is reduced to his possession and control does it cease to be
percolating water and become his personal property. However, if it
flows or percolates from his land, the property owner loses all right
and interest in it the instant it passes beyond the boundaries of his
property, when it enters the land of his neighbor it belongs to him
in the same limited way. Ibid., at Page 667. Thus, the Court
"the right of the owner to ground water underlying
his land is to the usufruct of the water and
not to the water itself. The ownership of the
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land does not carry with it any ownership
of vested rights to underlying ground water
not actually diverted and applied to beneficial
use." Ibid., at Page 667.
There is little law that has developed in Florida concerning
the ownership of the water in large navigable lakes, rivers, and
streams. Perhaps this results from the fact that generally the
state holds title to the bottom lands beneath these waters, and
the waters themselves are impressed with a public trust and naviga-
tional servitude. Nevertheless, in Florida a system a water rights
was developed as an extension of the early English common law. This
system is a riparian system and based water rights on ownership of
land abutting surface water courses, including both lakes and streams.
These owners are referred to, of course, as"riparian owners". This
system continues to exist in those areas of Florida which have not
implemented the consumptive use permit systems authorized by the
Florida Water Resources Act of 1972. Florida Water Law, 1980, Page 9.
Only those owners "abutting the stream" have a right to make use of
the water passing by their land.
II. WAS THE LANDOWNER'S RIGHT OF USE UNQUALIFIED BEFORE THE
FLORIDA WATER RESOURCES ACT OF 1972?
Landowners have never had an unqualified absolute right of use
for water on, beneath, orabutting their land. The owner's right to
use surface waters and subterranean streams was bounded by the limits
of the reasonable use rule as developed in Florida. Florida Water
Law, 1980, Page 24 and 25. See, also, Tampa Water Works Company vs.
Cline, 37 Fla. 586, 20 So. 780(1896). In other words, the right
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of one riparian owner to make use of the water for a beneficial
purpose is authorized so long as that intended use is reasonable
with respect to the needs of other proprietors on the stream or
lake and does not unnecessarily interfere with their legitimate
water uses. Florida Water Law, 1980, Page 12.
As the Florida Supreme Court declared in the case of Taylor vs.
Tampa Coal Company, 46 So.2d 392 (Fla.,1950):
"It is the rule that the rights of riparian
proprietors to the use of waters in a non-
navigable lake such as the one here involved
are equal. Except as to the supplying of
natural wants, including the use of water
for domestic purposes of home or farm, such
as drinking, washing, cooking, or for stock
of the proprietor, each riparian owner has
the right to use the water in the lake for
all lawful purposes, so long as his use of
water is not detrimental to the rights of
the other riparian owners." Ibid., at Page
A similar rule developed in Florida for percolating ground
waters. As noted in the Village of Tequesta opinion, Florida
followed the "reasonable use rule" for percolating ground waters, to
A landowner, who in the course of using his
own land, obstructs, diverts, or removes perco-
lating water to the injury of his neighbor...
must be (making) a reasonable exercise of his
proprietary right, i.e., such an exercise as
may be reasonably necessary for some useful or
beneficial purpose, generally relating to the
land in which the waters are found." Village
of Tequesta, at Page 666.
This system of water rights for surface and ground waters was
not very responsive to the needs of many water users. As the Court
noted in the Village of Tequesta, the reasonableness (of a'use) could
only be determined after the conflict arises between users. Village
of Tequesta at Page 670. Because the determination of "reasonableness
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of a use" depended in part on the use to be made of the same water by
adjacent riparian or overlying owner, the property rights of each in
the waters that naturally percolate through the land were correlative
to one another. Ibid., at Page 670. It is noted by the authors of
Florida Water Law, 1980,
"The reasonable use rule, however, is vague and
uncertain; one cannot know with any precision
who may use the available water, how much can
be used, or for what purpose it can be used.
This uncertainty exists because any use must
be reasonable with respect to the uses of other
riparian owners, and these uses are constantly
changing." Florida Water Law, 1980 at Page 57.
III. DID THE FLORIDA WATER RESOURCES ACT OF 1972 ABOLISH THE LAND-
OWNERS RIGHT OF USE WHICH THEN EXISTED?
The Florida Water Resources Act of 1972 (Chapter 72-299, Laws
of Florida) did not abolish the right of a property owner to make
use of the water beneath, on, or adjacent to his land. Nothing in
the act abolished the "right of use" which was formerly appurtenant
to the ownership of overlying lands. Instead, the "right of use"
was limited and regulated by the Act. In other words, the right
continues to exist, but the ability of the property owner to exercise
that right has now been limited by the legislation. This interpretation
of the Act is supported by the language in the Village of Tequesta
opinion, because the Court characterized the Florida Water Resources
Act as "legislation limiting the right to the use of the water...".
Village of Tequesta at Page 670. It did not construe the Act as
having abolished the right to the use of water. Further, under the
Act the previously existing right of owners to withdraw water from
beneath their property, or from adjacent streams, is not denied,
so long as the proposed use complies with the statutory criteria
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applicable thereto. See, Section 373.223 and 373.226, Fla. Stat.
IV. HOW HAS THE LANDOWNER'S RIGHT OF USE BEEN LIMITED BY THE
FLORIDA WATER RESOURCES ACT OF 1972?
As noted by the Court in Village of Tequesta, the Florida
Water Resources Act makes all waters in the state subject to regu-
lation unless otherwise specifically exempt. Village of Tequesta,
Page 670. Each regional water management district may be authorized
to implement a program for the issuance of permits authorizing the
consumptive use of particular quantities of water. Section 373.216,
Fla. Stat. Each property owner's common law right to use water
beneath, on, or adjacent to his property may be exercised only if
that owner has obtained the permit authorizing consumptive use of
the water. The Village of Tequesta, Page 671. In order to obtain
the initial permit for a new use, each owner would be required to
establish that the proposed use of water:
a. is a reasonable, beneficial use as defined in
Section 373.019(5); and
b. will not interfere with any presently existing
legal use of water; and
c. is consistent with the public interest.
Section 373.223, Fla. Stat.
Further, landowners are prohibited from continuing existing
uses of water, after implementation of a regulatory program under
Part II of the Water Resourses Act, except where they obtain a
permit authorizing continuation of the use. The permitting standard
for these existing uses is somewhat different than that stated above
for new uses. In order to obtain a permit for continuation of an
existing use, the owner would be required to show that the existing
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use is a reasonable beneficial use as defined in Section 373.019(5)
and is allowable under the common law of this state. Section 373.226
(2), Fla. Stat.
202 Madison Street
Post Office Box 399
Tampa, Florida 33601
ATTORNEYS FOR SOUTHWEST
FLORIDA WATER MANAGEMENT
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-LA-,_,u__L. s. L II i-i,
[ L. UlI
(5) In irmple:cntinai consumptive use perr:ittin programs, the department
and districts shall recognize the rinrilts of property owners and
users, as lilited by law, to make consumptive uses of qreYRd water
Trom their land for reasonable-boneficial uses In a ranner consistent
with th he_ public interest that will not Interfere with any presently
existTnin ga1-1 uses of viater.
(6)--The-depart4'eR t- and-di4str4e s-shail-senti(a1lHy-seek-te-F~a4Rta4R
The following statement (without coding) is recommended as
an addition to Rule 17-40.04 Water Use as a new subsection
(5) to read:
(5) In implementing consumptive use permitting programs, the
department and districts shall recognize the rights of
property owners and users, as limited by law, to make
consumptive uses of water from their land for reasonable-
beneficial uses in a manner consistent with the public
interest that will not interfere with any presently
existing legal uses of water.
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