Title: The Village of Tequesta, et al. v. Jupiter Inlet Corporation
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Title: The Village of Tequesta, et al. v. Jupiter Inlet Corporation
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum The Village of Tequesta, et al. v. Jupiter Inlet Corporation Flordia Supreme Court Case No. 52, 223 Draft Copy
General Note: Box 9, Folder 8 ( SF -State Water Policy/Property Rights Issue -Supporting Documents - 1977-1981 ), Item 2
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MEMORANDUM

RE: THE VILLAGE OF TEQUESTA, et al. v. JUI TER INLET CORPORATION
Florida Supreme Court Case o./52,223
Analysis of Opinion dated May 3, 1979

Jupiter Inlet Corpo nation (hereafter referred to as
"Jupiter") owned a tract of and approximately 1,200 feet from a
municipal wellfield being op rated 1r the Village of Tequesta
(hereafter referred to as questa,. The Tequesta wellfield
pumped in excess of one milli- ga lons of water per day from
the shallow water aquifer. Jup ef was engaged in the development
of a condominium project on its p 'erty and sought to use the
shallow water aquifer beneath its tr t as a source of supply.
Jupiter was not permitted to drill wel s to withdraw water from
the shallow water a 'er beneath its property because of the
endangered condition of f"i quifer due to the excessive with-
drawals made by Tequ ta. hR n ly means by which Jupiter could
supply water to its p per y was tot 'ill a well to the Floridan
< Aquifer located approxi ely 1,200 feet below the surface, at
a substantially greater exp nse.

oa upit r sued Teque ta in an action for inverse condemnation
Sand inju tion b sed on ry that due to depletion by Tequesta
c3 of the sa w w aquifer beneath its property, Jupiter was
co effective ly ved of the beneficial use of its property rights
in the s allow after aquifer.

5 The Tria Court entered summary final judgment in favor
c 0 of uesta, ruling in effect that Jupiter had failed to state a
leg clal upon which releif could be granted. On appeal, the
Distr t Cou 0 of Appeal for the Fourth District of Florida reversed
the TrI Cou t holding that a municipality may be held responsible
to an own w en it takes water for a public purpose from the
shallow aquif r underneath the owner's land, to the extent that it
deprives the/owner of the beneficial use of the shallow aquifer.
(Jupiter In et Corporation v. Village of Tequesta, 4th DCA, Fla.
1977; 349 So. 2d 216, 217.)

The District Court of Appeal indicated that the withdrawal
of freshwater by Tequesta caused a saltwater intrusion (from the
intercoastal waterway) into the shallow water aquifer under
Jupiter's land, making it unfit for use as a water source. The land
is a form of private property, the beneficial use of which the
owner of the land cannot be divested by the government for a public
purpose without due process of law and the payment of full
compensation. The District Court held that a "taking" had occurred
even where, as in this case, there was no actual entry by the
governmental authority on the owner's land.











MEMORANDUM


RE: THE VILLAGE OF TEQUESTA, et al./v. JUPITER INLET CORPORATION
Florida Supreme Court Case No./52,223
Analysis of Opinion dated May 3, 1979


Jupiter Inlet Corpo ation (hereafter referred to as
"Jupiter") owned a tract of and approximately 1,200 feet from a
municipal wellfield being op rated the Village of Tequesta
(hereafter referred to as questaY). The Tequesta wellfield
pumped in excess of one miller ga ons of water per day from
the shallow water aquifer. Jup was engaged in the development
of a condominium project on its p erty and sought to use the
shallow water aquifer beneath its tr t as a source of supply.
Jupiter was not permitted to drill wel s to withdraw water from
the shallow water a q-er beneath its property because of the
endangered condition of hiquifer due to the excessive with-
drawals made by Tequsta. fh c ly means by which Jupiter could
supply water to its pr per y was to -ill a well to the Floridan
Aquifer located approxi mely 1,200 feet below the surface, at
substantially greater expense.

upit r sued Teque ta in an action for inverse condemnation
and inju tion b sed on ry that due to depletion by Tequesta
of the s a w wt aquifer beneath its property, Jupiter was
effective ly apived of the beneficial use of its property rights
in the s allow after aquifer.

The Tria Court entered summary final judgment in favor
o uesta, ruling in effect that Jupiter had failed to state a
leg clal upon which releif could be granted. On appeal, the
Distr' t Cou of Appeal for the Fourth District of Florida reversed
the Tri Cou t holding that a municipality may be held responsible
to an own w en it takes water for a public purpose from the
shallow aquif r underneath the owner's land, to the extent that it
deprives the/owner of the beneficial use of the shallow aquifer.
(Jupiter Inlet Corporation v. Village of Tequesta, 4th DCA, Fla.
1977; 349 So. 2d 216, 217.)

The District Court of Appeal indicated that the withdrawal
of freshwater by Tequesta caused a saltwater intrusion (from the
intercoastal waterway) into the shallow water aquifer under
Jupiter's land, making it unfit for use as a water source. The land
is a form of private property, the beneficial use of which the
owner of the land cannot be divested by the government for a public
purpose without due process of law and the payment of full
compensation. The District Court held that a "taking" had occurred
even where, as in this case, there was no actual entry by the
governmental authority on the owner's land.


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Memorandum
Page Two
June 4, 197,9




Following applicable constitute' na provisions, the
Fourth District Court of Appeal certifi d the following question
to the Supreme Court of Florida as a m tter of g eat public
interest:

Can a municipality ~ e held responsible
through inverse co demnation for a taking
from private owne ship for public purposes,
of underground s allow aquifer water, to
the extent that t owner s deprived of
the beneficial use th aquifer?

The Supreme Court quashed % decision of the District
Court of Appeal and re anded the case tb that Court with instruc-
tions to affirm the su~aryjjudgment entged by the trial judge in
d favor of Tequesta. On the facts in this cse the Supreme Court
ruled that Tequesta cold not be held responsible through inverse
Q" condemnation for the dam ae suffered'by Jupiter.

Arti.-el-e Sectio.6, of the Florida Constitution for-
Sbids the "taking" of private property except for a public purpose
- and with f 11 compensation. Like the usual condemantion case,
in which pblic body commence litigation to acquire private
E= property/for ublii purposes upon payment of full compensation,
5 "invers condea t'desriptive of the situation which occurs
co where t owner \ private property which has been "taken" for
public purposes and without the payment of full compensation,
commences litigation to recover compensation for the loss of his
p perty*l order tb prevail the owner must show that he is the
"oer" of "private property" which has been "taken" for public
purp ses. Over the course of its opinion, the Supreme Court addressed
all t ee of th se elements of an inverse condemnation case.

Prior/to embarking on its analysis of the legal issues,
the court efi ed and described for the first time several basic
hydrologicaP Frms. Specifically, the court defined "aquifers" and
"aquicludes" and distinguished between the unconfined aquifers
associated with the water table and artesian aquifers.

OWNERSHIP OF UNDERGROUND WATERS. The court rejected Jupiter's
argument that it owned the waters beneath its lands. In the evolu-
tion of common law, Florida follows the "American" or "reasonable
use" rule. Under this rule a landowner avoids liability where, in
the course of using his own land, he removes percolating water to
the injury of his neighbor, provided he is making a reasonable
exercise of his proprietary rights, i.e., such an exercise as may








Memorandum
Page Three
June 4, 1979




be reasonably necessary for some useful or kbneficial purpose,
generally relating to the land in which th waters\are found.
The court stated that there can be no ownership in seeping and
percolating waters in the absolute sense, because of their
wandering and migratory character, u ess and until they're
reduced to the actual possession an control of the persoq claiming
them. There is a right of use as e water passes, but there is
no ownership in the absolute sens. A land ner (prior to the
adoption of the Florida Water Reso rces Ac of 1972) has the
unqualified right to capture and con _,ol derground water in a
reasonable way with an immunity from liab lity to his neighbors
for doing so. The ownership of the land does not carry with it
any ownership of vested r' hts to underlying groundwater not actually
diverted and applied to b ne fcial use. Thug the owner has a
right to the use of the wa er bene th his land, but he does not have
a property or proprietary terest in the corpus of the water
ag itself.

3 PRIVATE PROPERTY RIGHTS IN WATER \The court ruled that an owner's
> "right to use 'underlying groundwater is not "private property" as
c6 contemplated/by Artic e X, Section 6, Florida Constitution. This
S"right to u e" e s not a sufficient property interest to support an
S action for nverDe condemnation under Florida law. It seemed
.a significant to thecrt"'Th i-hes.e-ights to use" lack certainty
cQ and are variable. .Te property rights relative to waters that
naturally percolate through the land of one owner to and through
theLand-afanother are\correlative. Thus, one owner's "right to
use" wter beneath his property may become dependent upon the
reasono bleness"'of his neighbor's use.

Further, the court deemed it significant that Jupiter
was asserting a righq to be compensated for its "right to use" when
it had never perfected that right through actual "use." The court
seemed to distinguish between the "right to use" water and a "use"
of water. This distinction would seem to suggest that an existing
"use" of water may/amount to a sufficient "private property right"
to support an action for inverse condemnation where an owner is
deprived of an existing use.

In the course of its opinion the Supreme Court over-
ruled language in a previous decision by the Second District Court
of Appeal which stated that water beneath the surface is a valuable
property right which cannot be divested without due process of law
and the payment of just compensation. (Valls v. Arnold Industries,
Inc., et al., 328 So.2d 471, 473; Fla. 2d DCA 1976.)


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Memorandum
Page Four
June 4, 1979




THE TAKING ISSUE. The Florida Cons tstion does not forbid
"damage" to property except with f lcoifensation. It forbids
the "taking" of property. Whether propertyhas been "taken" or
merely "damaged" is a difficult q estion. Generally, when the
governmental action is such t 't it does not encroach on private
property but merely impairs i s use by the owner, "he action does
not constitute a "taking" bu is merely consequential damage and
the owner is not entitled t compensation on an inverse condemna-
tion theory. In the case hand, the Supreme Court held that
there was no taking of Jupit 's right of user. Jupiter still
had a right to use the water be at its property. The effect
of the Tequesta action was to req e Jupiter to draw water from
the deeper Florida uifer instead the less expensive shallow
water aquifer. The\couracharacterize this injury as "consequential
In determining, whether there was a "taking" the court
Lu" also deemed it significant tha in the iase at hand there was no
2 damage to Jupi-rer s land isf; nor was there any physical invasion
8 of Jupiterys pro erty by theagents of Tequesta. Other Florida
cases hav. suppo ed the paymeQt of compensation for inverse condemna-
tion where damage to the land was manifest. Here, the inability to
use the/s allow later aquifer did ngt deprive Jupiter of the
5 benefit ial e se -t ATr-tand-&e.-f Jupiter proceeded to develop
Co the pr perty to its highest and best use and, in the opinion of the
court, has suffered no more than consequential damage, which is not
compensable throughinverse condemnation. Jupiter's "right of user"
---evied 4the action Tequesta.


FLORIDA WATER RESOURCES ACT OF 1972. The court found within the
framework of Cha ter 373, Florida Statutes, yet another reason for
not approving Jup ter's inverse condemnation theory. The court
noted that under he permitting system for consumptive uses authorized
by the Flo Nda Wa-er Resources Act (as implemented by South Florida
Water Manage nt district) Jupiter would be required to secure a
permit in order draw water from beneath its property. As the
court indicated

Without a permit Jupiter has no such
property right to the use of water
beneath its land for which, upon depriva-
tion, it must be compensated through
inverse condemnation.

Thus, the court found, that absent a permit under
Chapter 373, Florida Statutes, Jupiter had perfected no legal


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Memorandum
Page Five
June 4, 1979




interest to the use of the water beneath its la4which would
support an action in inverse condemnation. It blowed that,
having failed to establish or perfect a legal inte st in the use
of the water beneath its land, there could be o "ta ng" of this
right.

During its discussion of this point, the court imlicitly
approved the validity of Chapter 373 w' n it indicated .
Legislation limiting th right to
the use of the water i in itself /
no more objectionable tNn legislation
forbidding the use of property f'r
certain purposes by zoning regulations.




z In the closing portionsof the opinion the court
CO summarized its ruling in eight\separate -aragraphs. Four of these
a paragraphs are especially sign ican to Southwest Florida Water
Management District, to-wit:
5 2. There was no owneship in the
m waters below the land,\as the right
o'f.e owner to groundwater underlying
his 1 nd was to the use of the water
and n)t to the water itse f;

/ 4 e^ i'Fersion--of-water from the
S shallow water aquifer is not a "taking"
or an\appropriation of property for
public use requiring condemnation
proceedings unless there is a resulting
damage to the land itself, for example,
a diversion of water to the extent that
\the land becomes unsuitable for cultiva-
tiqn, raising the level of flowing waters
to he extent that land is flooded, etc.;

5. The landowner does not have a
constitutionally protected property right
h the water beneath the property, requir-
ing compensation for the taking of the
water when used for a public purpose;

7. The Water Resources Act now controls the
use of water and replaces the ad hoc judicial
determination in water management districts
where consumptive use permitting is enforced.








Memorandum
Page Six
June 4, 1979





A Caveat: The our distinguishes its analysis from
the line of cases involve g liab ity in tort for interference
with another's use of water. The c rt noted the case of
Labruzzo, et ux. v. tlantic Dredging d Construction Company, etc.,
54 So.2d 673 (Fla. 151) and reapproved -he language in that decision
which says:

S en at common law, a person was
subject liability for interference
with anot s use of water, either for
(1) an inten *onal invasion when his
ct was un asonable under the cir-
umstan s of th particular case, or
S) an u national invasion when his
cO duct as ne igent, or reckless or
L. ult ha ardous.




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The VILLAGE OF TEQUESTA, etc,
et al, Petitioners,
V.
JUPITER INLET CORPORATION,
etc., Respondent.
No. 52223.
Supreme Court of Florida.
May 3, 1979.
Rehearing Denied June 26, 1979.


Owner instituted action for inverse
condemnation and injunction on theory
that, due to depletion by village of shallow-
water aquifer beneath its property, owner
was effectively deprived of beneficial use of
its property rights in such aquifer. The
Circuit Court, Palm Beach County, Lewis
Kapner, J., granted summary judgment in
favor of village, and owner appealed. The
District Court of Appeal, 349 So.2d 216,
reversed and certified question whether
municipality could be held responsible
through inverse condemnation for taking of
underground shallow aquifer water to ex-
tent that owner was deprived of beneficial
use of aquifer. The Supreme Court, Ad-
kins, J., held that: (1) diversion of water
from shallow-water aquifer was not a "tak-
ing" or appropriation of property for public
use requiring condemnation proceeding; (2)
owner did not have constitutionally protect-
ed property right in water, requiring com-
pensation for taking of water when used
for a public purpose; (3) owner's only reme-
dy was through proper application for per-
mit under Water Resources Act, and (4)
village could not be held responsible for
damages for inverse condemnation.
Decision of District Court of Appeal
quashed and cause remanded with instruc-
tions.

1. Waters and Water Courses 0-101
Prior to adoption of Water Resources
Act, Florida followed reasonable use rule;
that is, a landowner, who in the course of
using his own land removed percolating


Fla. 663


water to the injury of his neighbor had to
be making a reasonable exercise of his pro-
prietiry rights, i. e., such an exercise as
might be reasonably necessary for some
useful or beneficial purpose, generally relat-
ing to land in which waters were found.
West's F.S.A. 373.012 et seq.
2. Waters and Water Courses *101
Reasonable.use rule afforded landown-
er no ownership in waters below land, as
right of owner to ground water underlying
his land was to use of water and not to
water itself.
3. Waters and Water Courses =101
Percolating water, which is migratory
in nature and is part of land only so long as
it is in it, belongs to overlying owner in
limited sense that he has unqualified right
to capture and control it in reasonable way
with immunity from liability to his neigh-
bors for doing so but, if it flows or perco-
lates from his land, he loses all right and
interest in it the instant it passes beyond
property boundaries.
4. Waters and Water Courses =-101
Right of owner to ground water under-
lying land is to usufruct of water and not to
water itself; ownership of land does not
carry with it any ownership of vested rights
to underlying ground water not actually
diverted and applied to beneficial use.
5. Eminent Domain -=84
Right to use water does not carry with
it ownership of water lying under land, and
thus, although "right of user" may be pro-
tected by injunction or regulated by law,
right of user is not "private property" re-
quiring condemnation proceedings unless
property has been rendered useless by di-
version of water for certain purposes; over-
ruling Vails v. Arnold Industries, Inc., et
al., 328 So.2d 471.
6. Eminent Domain *2(1)
When governmental action is such that
it does not encroach on private property but
merely impairs its use by owner, action does
not constitute a "taking" but is merely con-
sequential damage and owner is not enti-


VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
SCie Ias,Fl. 371 S2d 663





7.;


664 Fla.


371 SOUTHERN REP


tied to compensation. West's F.S.A.Const.
art. 10, 6.
7. Eminent Domain *=270
If damage suffered by owner is equiva-
lent of a taking or an appropriation of
property for public use, then Constitution
recognizes owner's right to compel compen-
sation; on the other hand, if damage suf-
fered is not taking or appropriation within
limits of organic law, then damages suf-
fered are damnum absque injuria and com-
pensation therefore by the public agency
cannot be compelled. West's F.S.A.Const.
art. 10, 6.
8 Waters and Water Coursesi 4=144
"Reasonable use" rule, insofar as pro-
prietary beneficial use of water is con-
cerned, has no application where court is
concerned with proprietary use of land, and
in which water is only incidentally affected.
9. Eminent Domain =-84, 27
Where village utilized all available per-
colating water of shallow-well aquifer in
area of owner's land, owner decided to be-
come competing user, which desire was
thwarted because village had utilized all
water that could be safely withdrawn from
aquifer, and owner then had to go deeper to
Floridan aquifer to obtain its water, owner,
which had right to use water but which had
never perfected use to point that it was in
existence, was not entitled to compensation
on inverse condemnation theory for "tak-
ing" or appropriation of property for public
use as result of village's diversion of water
from shallow-water aquifer. West's F.S.A.
Const. art. 10, 6.
10. Eminent Domain =>84
Landowner does not have constitution-
ally protected property right in water be-
neath property, requiring compensation for
taking of water when used for a public
purpose. West's F.S.A.Const. art. 10, 6.
11. Waters and Water Courses e=144
Just as legislation may limit use of
property for certain purposes by zoning, so
./ right to use of water may also be limited or
regulated. West's F.S.A. 873.012 et seq.


PORTER, 2d SERIES
A-
12. Waters and Water Courses *>101 '
Owner, in serving a 120-unit condomia
ium, did not qualify as individual user and
thus, in order to draw water from beneath
its property, it had to secure a permit under
the Water Resources Act, which now con
trols use of water, and without a permit
owner had no property right to use of water;
beneath its land for deprivation of which it
had to be compensated through inverse con-
demnation. West's F.S.A. 373.016, 3
023(1), 373.219(1).
3. Eminent Domain *266
Where village, which had utilized all
available percolating water of shallow-welU
aquifer in area of owner's land, had ace
quired permit under Water Resources Act
and owner was merely a proposed user that
had not exercised its common-law water
right, owner had no perfected legal interest
to use of water beneath its land which
would support action in inverse condemna-
tion against village. West's F.S.A. 373
226(2, 3).
14. Eminent Domain 0=3
Statutory prohibition of use of eminent
domain in one situation cannot be used as
authority for its use by implication in an-
other, as statute must be strictly const
West's F.S.A. 373.1961(7).

John C. Randolph of Johnston, Sasser
Randolph, West Palm Beach, for petiti
ers.
Marjorie D. Gadarian of Jones, Paine
Foster, West Palm Beach, for responded
Robert Grafton, Thomas J. Schwa
John H. Wheeler and Stephen A. Walker,
West Palm Beach, amicus curiae for Sout
Florida Water Management District.
John T. Allen, Jr., St. Petersburg, ami
curiae for Pinellas County.
Louis de la Parte, Jr., Tampa, amiec
curiae for West Coast Regional Water Sp
ply Authority.
Jacob D. Varn, of Carlton, Fields, W
Emmanuel, Smith & Cutler, Tampa, amic
curiae for Pasco County, S. C. Bexley, Jr
L. S. B. Corporation, and Angeline Corpo
tion.












VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Ctaea,Fa 171 So.d 663


John F. Wendel, of Wendel, Broderick &
' Chritton, Lakeland, amicus curiae, for Cit-
rus County.

ADKINS, Justice.
Pursuant to article V, section 3(bX3),
Florida Constitution, the Fourth District
Court of Appeal in Jupiter Inlet Corp. v.
Village of Tequesta, 349 So.2d 216 (Fla. 4th
DCA 1977) certified to this Court as a mat-
S ter of great public interest the following
,. .question:
Can a municipality be held responsible
S through inverse condemnation for a tak.
ing, from private ownership for public
A purposes, of underground shallow aquifer
water, to the extent that the owner is
deprived of the beneficial use of the aqui.
fer?
Jupiter Inlet Corporation, plaintiff in the
trial court, will be referred to as Jupiter,
and The Village of Tequesta, defendant in
the trial court, will be referred to as Tet
quest.
S Jupiter owned property near Tequesta on
S which it planned to build a 120-unit condo.
minium project, "Broadview." This proper-
* ty was located approximately 1200 feet
from Tequesta's well field number four,
This well field contained seven wells, seven.
ty-five to ninety feet deep, which pumped
in excess of a million gallons of water a day
From the shallow water aquifer to supply
Tequesta residents with water. It was rela-
tively inexpensive to withdraw water front
the shallow-water aquifer.
As a result of the excessive amount of
water withdrawn by Tequesta from the
shallow-water aquifer, the fresh-water sup-
ply was endangered and salt water from
the intercoastal waterway intruded into the
shallow-water aquifer. There was testimo4
ny from a hydrologist that saltwater intru-
sion was caused by a reduction in the water
levels in the interior to a point low enough
S that the fresh-water level could not with-
S stand the pressure of the saltwater level in
the intercoastal. The water which Teques-
ta withdrew came from the shallow-water
Aquifer beneath its property. Because Te-
questa would not supply Jupiter water, it


was necessary for Jupiter to secure a spe-
cial exception from the county. Tequesta
opposed the permit application and it was
denied. Jupiter was not permitted to drill
wells to withdraw water from the shallow-
water aquifer because of the endangered
condition of the aquifer due to the excessive
withdrawals made by Tequesta.
The only means by which Jupiter could
supply water to its property was to drill a
well to the Floridan aquifer located 1200
feet below the surface, at a substantially
greater cost
Jupiter instituted an action for inverse
condemnation and injunction due to the ex-
cessive pumping by Tequesta. The theory
of Jupiter's action was that due to depletion
by Tequesta of the shallow-water aquifer
beneath its property Jupiter was effectively
deprived of the beneficial use of its proper-
ty rights in the shallow-water aquifer.
Considering any factual conflicts in the
light most favorable to Jupiter, the trial
judge granted a summary judgment in fa-
vor of the Village of Tequesta. Viewing
the facts in the same light as did the trial
court, the district court of appeal said:
The owner has been deprived by govern-
ment action of the use and enjoyment of
what was his, and so through a suit in
inverse condemnation he can compel the
government to pay for what it has taken.
349 So.2d at 217. The district court of
appeal then certified the above question to
this Court for consideration.
The following hydrological statements
are fully supported by F. Maloney, S. Plag-
er, and F. Baldwin, Water Law and Admin-
istration, page 141 (1968) (hereinafter re-
ferred to as Water Law) as well as the
discussion in City of St. Petersburg v.
Southwest Florida Water Management Dis-
trict, 355 So.2d 796 (Fla. 2d DCA 1977).
Water-bearing zones under the earth's
surface capable of receiving, storing, and
transmitting water are called aquifers.
Most aquifers in Florida are cavernous
limestone or sand and shale beds. Aquifers
are separated by relatively impervious lay-
ers of shales and clays which are called
aquicludes.


Fla. 665


4 ,




.,E' ~- .


666 Fla. 371 SOUTHERN RE

There are two basic types of acquifers.
One is the unconfined aquifer associated
with the water table. It is free to rise and
fall with the amount of rainfall and other
surface-water influences such as rivers,
lakes, irrigation, etc. Near the coast the
water level in this aquifer fluctuates with
the tidal action. It is referred to as the
ground-water aquifer, water-table aquifer,
and the shallow aquifer.
The other type of aquifer is an artesian
aquifer. Water in this aquifer is confined
within aquicludes. Water will either not
pass through these aquicludes or will do so
at a much slower rate than it can travel
within the aquifer itself. Water enters
artesian aquifers slowly through the sur-
rounding aquiclude by virtue of fissures,
sinkholes, or other openings in the aqui-
clude. Water in the artesian aquifer is
under pressure. One artesian aquifer is
known as the Floridan aquifer. It underlies
most of the state and furnishes most of the
well-water supplies of the state.
In an early decision, Tampa Watchworks
Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896),
we made a classification of water passing
over or through lands as follows:
(1) In respect to surface streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one
owner to those of another; (2) in respect
to surface waters, however originating,
which, without any distinct or well-
defined channel, by attraction, gravita-
tion, or otherwise, are shed and pass from
the lands of one proprietor to those of
another; (3) subterranean streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one to
those of another proprietor; (4) subsur-
face waters which, without any perma-
nent, distinct, or definite channel, perco-
late' in veins or filter from the lands of
one owner to those of another.
20 So. at 782.
Although we classified water as if its
different physical states were separate and
distinct, we recognize that these classes are
interrelated parts of the hydrologic cycle.
We are primarily concerned in this case


PORTER, 2d SERIES


with the rights of landowners in the shal-
low-water aquifer. '

[1] ancientt law gave no special consid-
eration 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. Trelease, Government Owner.:
ship and Trusteeship of Water, 45 Calif.
Law Review 638, 640 (1957). Technological
ignorance about the existence, origin, move-
ment and course of percolating ground;
waters resulted in the so-called "English;
rule" which essentially allowed a land own-;
er to take or interfere with percolatng,
waters underlying his land, irrespective of1
any effects his use might have on gound
water underlying his neighbors' lands.)(This
doctrine, first enunciated in 1843 in an Eng.
lish case, Acton v. Blundell, 152 Eng.Rep.
1235 (1843) was based upon the maxim, "To.
whomsoever the soil belongs, 4e owns also
to the sky and to the depths." See Water
Law at 155. With the growth of hydrologi-
cal capabilities in pumping technology, the
English rule was repudiated in most Ameri-
can jurisdictions. See Annots. 29 A.L.R.
1354, 1361-65 (1953); 109 A.L.R. 395, 399-
403 (1937); 55 A.L.R. 1385, 1 8-140
(1928), and cases cited therein. Ihe 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 anoth'
er." See Koch v. Wick, 87 So.2d 47 (Fla.
1956); Cason v. Florida Power Co., 74 Fla.,
1, 76 So. 535 (Fla.1917); Bassett v. Salis
bury Manufacturing Co., 43 N.H. 569 (1862).
The reasonable use rule adopted by most.
Eastern states, including Florida, was stat-
ed by one court as follows:
[A] landowner, who, in the course of us-l
ing his own land, obstructs, diverts, or
.removes percolating water to the inju
of his neighbor .must be [mak
ing] a reasonable exercise of his prop
tary right, i. e., such an exercise as ma
rea naly necessary for some useful
or beneficial purpose, generally relating
to the land in which the waters are
found.





n)


VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cite as, F., 371 So.2d 663


Fla. 667


A


Finley et ux. v. TeetefStone, Inc., 251 Md. ownership in the absolute sense. It belongs
428, 435, 248 A.2d 106, 111-12 (Md.App. to the overlying owner in a limited sense,
1968). See also Water Law at 158. that is, he has the unqualified right to
In applying the reasonable use rule this capture and control it in a reasonable way
Court has not given definite answers as to with an immunity from liability to his
the actual amount of water that may be neighbors for doing so. When it is reduced
taken by overlying land owners, nor have to his possession and control, it ceases to be
we considered the meaning of the term percolating water and becomes his personal
"ownership" as applied to percolating property. But if it flows or percolates from
water. his land, he loses all right and interest in it
In 93 C.J.S. Waters section 90, page 765 the instant it passes beyond the boundaries
(1956), the rule is stated thus: of his property, and when it enters the land
-There can be no ownership in seeping and of his neighbor it belongs to him in the
percolating waters in the absolute sense, same limited way.
because of their wandering and migrato- 4 The t of the n to ground
ry character, unless and until they are water his land is to the
water undlin his land is to the usufruc
reduced to the actual possession and con- the w erand not to the water r
..... .". .i. ... ,of the water an-d not to the water -
trol of the person claiming them. Their h ., l -ot carry
... . The ownership of the land does notcarry
ownership consists in the right of the .
o the land to captuw ith it any ownership of vested rights to
underlying ground water wt actually di-
possess them, to prevent their escape, if .
possess them, to prevent their escape, if verted and applied to beneficial use.
he can do so, from his land, and to pre-
vent strangers from trespassing on his In Valls v. Arnold Industries, Inc. et al.,
land in an effort to capture, control, or 328 So.2d 471, 473 (Fla. 2d DCA 1976) the
_possess them. If percolating waters es- court said:
cape naturally to other lands, the title of Water, oil, minerals and other substances
the former owner is gone; while a land- of value which lie beneath the surface are
owner may prevent the escape of such valuable property rights which cannot be
waters from his land, if he can do so, yet divested without due process of law and
he has no right to follow them into the the payment of just compensation.
lands of another and there capture, con- This case involved a post-trial apportion-
trol, or reduce them to possession. [Foot- ment award in condemnation as between
notes omitted]. fee-title owners and owners of reserved
[2] The common-law concept of absolute mineral rights. In order to effect a pay-
ownership of percolating water while it is in ment to the holders of the mineral rights, it
one's land gave him the right to abstract was necessary for the court to find that
from his land all the water he could find these mineral rights were property rights
there. On the other hand, it afforded him and therefore subject to condemnation.
no protection against the acts of his neigh- The court relied upon Copello v. Hart, 293
bors who, by pumping on their own land, So.2d 734 (Fla. 1st DCA 1974) and Dickin-
managed to draw out of his land all the son et al. v. Davis et al., 224 So.2d 262
water it contained. Thus the term "owner- (Fla.1969). These cases held that minerals,
ship" as applied to percolating water never gas, and oil are separate properties from
.mneanUhat the overlying owner had a prop- the surface and may be conveyed and taxed
erty or proprietary interest in the corpus of separately. Neither case referred to prop-
he water itself. erty rights in water.
[3] This necessarily follows from the [5] We overrule the dicta in Valls, su-
physical characteristic of percolating water. pra, that water beneath the surface is a
It is migratory in nature and is a part of private property right which cannot be di-
the land only so long as it is in it. (There is vested under any circumstances without
( aright of use as it passes, but thee is no due process of law and the payment of just


4*" 10
A"W_











668 Fla.


371 SOUTHERN REP


compensation. The right to use water does
not carry with it ownership of the water
lying under the land. Of course, "property"
in its strict legal sense "means that domin-
ion or indefinite right of user and disposi-
tion which one may lawfully exercise over
particular things or objects." Tatum
Brothers, etc. v. Watson, 92 Fla. 278, 109 So.
623, 626 (1926). This "right of user" may
be protected by injunction, Koch v. Wick,
supra, or regulated by law, Pounds v. Dar-
ling, 75 Fla. 125, 77 So. 666 (1918); Broward
v. Mabry, 58 Fla. 398, 50 So. 826 (1909), but
the right of user is not considered "private
property" requiring condemnation proceed-
ings unless the property has been rendered
useless for certain purposes. For example,
in Kendry et al. v. State Road Department,
213 So.2d 23 (Fla. 4th DCA 1968), the state
agency caused such flooding on the owner's
property that it was rendered useless for
residential purposes. This was a "taking."
In the case sub judice, Jupiter was only
subjected to the consequential damages in-
curred when it was required to draw water
from the Floridan aquifer instead of. the
shallow-water aquifer. It still had a "right
of user."
There is a distinction when this right of
user as to water has been invaded by cir-
cumstances showing an intentional invasion
in an unreasonable manner or an uninten-
tional invasion when the conduct was negli-
gent, reckless, or ultrahazardous, resulting
in a destruction of the right of user as to
land.
For example, in Labruzzo et ux. v. Atlan-
tic Dredging & Const. Co. etc., 54 So.2d 673
(Fla.1951), plaintiff sued for damages for
the interruption and diversion of the natu-
ral flow of the underground waters which
fed plaintiff's spring. The defendant con-
tended that there was no indication of the
existence of a well-defined subterranean
stream feeding plaintiff's spring. There-
fore, the source of the spring should have
been considered percolating waters, the
flow of which had been interrupted by the
defendant in the lawful and reasonable use
of its property. Under the reasonable use
rule, defendant contended that plaintiff had


PORTER, 2d SERIES

no cause of action. The trial judge agreed
and, upon appeal, this Court reversed, say
ing:
At the outset, it should be noted that we
are not here dealing with a problem i
volving a proprietary competition ov
the water itself-that is to say, there is
no conflict here between the respective
rights of persons to make competing pro,
prietary uses of subterranean waters to
which they both have access. In such
cases, the present trend among the courts
of this country is away from the old
common-law rule of unqualified and abso-
lute right of a landowner to intercept and
draw from his land the percolating
waters therein; and the latter cases hold
that the right of a landowner to subterra-
nean waters percolating through his own
land and his neighbor's lands is limited to
a reasonable and beneficial use of suck
waters.
In the instant case, however, we are coni
cerned with an interference with plain.
tiffs' use of the spring on their land,
caused by conduct of the defendant not
involving a competing use of water and
in which the effect on the subterranean
water is only incidental to the defend..
ant's use of its land. Obviously, then, the
rule of "reasonable use," as engrafted,
upon the old common-law rule of absolute
and unqualified ownership of percolating
waters, insofar as the proprietary benefi-.
cial use of the water is concerned, has no
application here where we are concerned
with the proprietary use of land, and in|
which the water is only incidentally af-
fected. Under such circumstances, evea
at common law, a person was subject to
liability for interference with another'sA
use of water, either for (1) an intentional
invasion when his conduct was unreason-,
able under the circumstances of the par-
ticular case, or (2) an unintentional inva-
sion when his conduct was negligent,
reckless or ultrahazardous. Restatement
of Torts, Vol. IV, Section 849, and See-;
tions 822-840. In the absence, then, of
surface indications, an interference with
subterranean water is, or course, uninten-
tional and damnum absque injuria unless


.4


--1 -llh





.r)


VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cie as FI&, 371 Se.d 413


the conduct resulting therein is negligent,
reckless or ultrahazardous. .
Since the allegations of plaintiffs' decla-
ration must be taken as true on demur-
rer, it is clear that plaintiffs have stated
a cause of action for an intentional inva-
sion by defendant of their water rights,
for which it must respond in damages if
its conduct was unreasonable under the
particular circumstances. .[Cita-
tions omitted].
54 So.2d at 675-77.
Article X, section 6, of the Florida Consti-
tution forbids the "taking" of private prop-
erty except for a public purpose and with
full compensation. Unlike the constitutions
of several other states, the Florida Consti-
tution does not expressly forbid "damage"
to property with just compensation. Arun-
del Corp. et al. v. Griffin et al., 89 Fla. 128,
103 So. 422 (1925).
[6] When the governmental action is
such that it does not encroach on private
property but merely impairs its use by the
owner, the action does not constitute a
"taking" but is merely consequential dam-
age and the owner is not entitled to com-
pensation. Selden et al. v. City of Jackson-
ville, 28 Fla. 558, 10 So. 457 (1891).
In Poe v. State Road Department, 127
So.2d 898, 901 (Fla. 1st DCA 1961) the court
said:
It is universally recognized that injury by
the condemnor to remaining land caused
by obstructing, diverting or increasing
the flow of surface waters, but which do
not amount to a permanent deprivation
by the owner of the use of such remain-
ing lands, is a consequential damage re-
sulting from the taking in an eminent
domain proceeding, and must be recov-
ered in that proceeding, if at all. [Foot-
note omitted].
[7J If the damage suffered by the'own-
er is the equivalent "of a taking" or an
appropriation of his property for public use,
then our constitution recognizes the owner's
right to compel compensation. On the oth-
er hand, if the damage suffered is not a
taking or an appropriation within the limits


of our organic law, then the damages suf-
fered are damnum absque injuria and com-
pensation therefore by the public agency
cannot be compelled. Weir v. Palm Beach
County, 85 So.2d 865 (Fla.1956).
The district court of appeal, in its opinion,
relied upon White v. Pinellas County, 185
So.2d 468 (Fla.1966), as authority for the
principle that a taking can occur when any
property rights are involved. This case in-
volved trees and shrubs located on the prop-
erty which were used as a windbreak and a
privacy screen. In White there was a phys-
ical invasion of the property when the state,
through its agents, cut down large trees
and shrubs. In the case sub judice there
was no physical invasion of Jupiter's prop-
erty by the agents of Tequesta, so no com-
pensation is due for consequential damage.
The cases relied upon by respondent in-
volve situations where there was damage to
the land itself, a result which does not exist
in this case. Cason v. Florida Power Co.,
supra, dealt with resulting damage to the
fee because of the diversion of percolating
water. Koch v. Wick, supra, dealt with
damage to the fee by diversion of water
therefrom to the point that the fee would
become infertile and unsuitable for cultiva-
tion. In State Road Department et al. v.
Tharp, 146 Fla. 745, 1 So.2d 868 (1941), the
construction of a highway embankment im-
peded the flow and raised the level of a
millrace to such an extent as to destroy the
use of plaintiffs grist mill. This was held
to be a taking.
[8] The "reasonable use" rule insofar as
the proprietary beneficial use of water is
concerned has no application where the
court is concerned with the proprietary use
of land, and in which the water is only
incidentally affected. See Labruzzo v. At-
lantic Dredging and Construction Co., su-
pra.
Property owners have been successful in
seeking relief under the theory of inverse
condemnation against the appropriate au-
thority as a result of the excessive noise
from low-flying jet aircraft. See Hillsbor-
ough County Aviation Authority v. Benitez,
200 So.2d 194 (Fla. 2d DCA. 1967). The


Fla. 669


** '


i.
A
p.











,r












I,!
Y.





Ir.
^*;

I:






''1












670 Fla. 371 SOUTHERN RE]

"taking" of an airspace above the land is
not comparable to the "taking" of the
water located in a ground aquifer beneath
the land in the absence of a trespass on the
land itself. The damage to the airspace
was such as to deprive the property owners
of all beneficial use of their property. The
alleged damage to the shallow-water aqui-
fer deprived Jupiter of no beneficial use of
the land itself. Jupiter developed the prop-
erty to its highest and best use and has
suffered no more than consequential dam-
age, which is not compensable through in-
verse condemnation.
[9] The bare essential facts controlling
this case are simple and direct. Tequesta
utilized all of the available percolating
water of the shallow-well aquifer in the
area of Jupiter's land. Jupiter decided to
become a competing user. This desire was
thwarted because Tequesta had utilized all
of the water which could be safely with-
drawn from the shallow-well aquifer. This
meant Jupiter had to go deeper to the Flori-
dan aquifer to obtain its water and to spend
more money than it would have if allowed
to use the shallow-well aquifer. The costs
were increased both in drilling and treat-
ment of the water. It is a hydrologic im-
possibility to place a value upon the water
which was withdrawn from underneath Ju-
piter's land.
It is incumbent upon Jupiter to show, not,
only a taking, but also that a private prop-
erty right has been destroyed by govern-i
mental action. Jupiter did not have a con-
stitutionally protected right in the water
beneath its property. In the cases cited by
Jupiter, the courts supported compensation
for the taking of a use which was existent
and of which a party was deprived. Jupiter
seeks to be compensated for a use which it
had never perfected to the point that it was
in existence. Jupiter had a right to use the
water, but the use itself is not existent until
this right is exercised.
The property rights relative to waters
that naturally percolate through the land of
one owner to and through the land of an-
other are correlative. Reasonableness could
only be determined after the conflict arises


I


PORTER, 2d SERIES

between users. The "reasonableness" of a
given use depends upon many variables
such as: the reasonable demands of other
users; the quantity of water available for
use; the consideration of public policy.
Even an allocation between conflicting
users has no durability, for the decision by
another land owner to exercise his previous..
ly neglected right to use water could easily,
render all other uses unreasonable. A per-
son developing his own land could make a
substantial investment with no way of de-
termining whether reasonable use by others
would limit or destroy his development
right even though it was the first in time.
[101 The judicial system was ill-
equipped to deal with such conflict and
became oriented to a case-by-case approach
to solving disputes. This Court recognizes
that all conflicts between competing user
must be determined from the facts and
circumstance of particular cases as they
arise. Cason v. Florida Power Co., supra.
This "right to use" is not "private property"
as contemplated by article X, section 6,
Florida Constitution requiring full compen-
sation before taking for a public purpose.
[11] The State of Florida operates un-
der an administrative system of water man-
agement pursuant to the rms of the Flo
da Water Resources Act. Ch. 373, Fla.Stat
(1972). The law prior to he Florida Water
Resources Act did not low ownership in
the corpus of the water, ut onl in the u
of it. Even then, the u was bounded by
i'Thprimeters of reasonable and beneficial
use. Legislation limiting the right to the
use of the water is in itself no more object.
tionable than legislation forbidding the use
of property for certain purposes by zoning
regulations. Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
LEd. 303 (1926); 54 A.L.R. 1016 (1928)
[12] The Florida Water Resources Act,
in recognizing the need for conservation
and control of the waters in the state (Sec.
tion 373.016, Fla.Stat. (1973)) makes all
waters in the state subject to rulation
unless otherwise specifically exempt.
S373.023(1) Fla.Stat. (173). The Depart












VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cte as, Fla. 371 So.d 663


ment of Environmental Regulation and the
various water management districts are:
given the responsibility to accomplish the
conservation, protection, management, and
control of the waters of the state. 373.-
016(3) Fla.tat. (1973). In order to exercise
such controls a permitting system is estab-
lished which requires permits for consump-
tive use of water, exempting only "domestic
consumption of water by individual users"
from the requirements of a permit. 373.-
219(1) Fla.Stat. (1973). Ju i r, in serving
a 120-unit condominium, does not qualify as
an individual user and thus m t secure a
S permit in order to draw water from beneath
its property. Without a permit Jupiter has
/ no such property right tohe use of waer
Sbenet its land for which un depriva-
tion, it must be nated through in
verse condemnation.
[13] The Water Resources Act of 1972
recognizes a right to use water under the
common law as separate from the right to
use water under a permit granted pursuant
to the act. This is done by a provision
concerning the termination of the common-
law right and a transitional procedure. The
holder of such a common-law water-use
right was given two years to convert the
:, common-law water right into a permit
S water right 373.226(3) Fla.Stat. (1973).
In order to qualify for the initial permit
* under section 373.226(2) Florida Statutes
. (1973), the right must have been exercised
prior to the implementation of the Florida
Water Resources Act by a water manage-
ment district with geographical jurisdiction
in that area. Otherwise the right is aban-
doned and extinguished requiring a new
application for a permit. Tequesta had ac-
quired the permit and Jupiter was merely a
proposed user. The Florida Water Re-
sources Act makes no provision for the con-
tinuation of an unexercised common-law
right to use water. Jupiter had perfected
no legal interest to the use of the water
S beneath its land which would support an
action in inverse condemnation.
Section 373.1961 Florida Statutes (1975)
provides additional powers and duties for
the governing boards of the water manage-


Fla. 671


trent district. Subsection (7) provides that
the governing board:

May acquire title to such interest as is
necessary in real property, by purchase,
gift, devise, lease, eminent domain, or
otherwise, for water production and
transmission consistent with this section.
However, the district shall not use any of
the eminent domain powers herein grant-
ed to acquire water and water rights
already devoted to reasonable and benefi-
cial use or any water production or trans-
mission facilities owned by any county,
municipality, or regional water supply au-
Sthority. [Emphasis supplied].

[14] Condemnation of "water rights" is
not granted in the first sentence of this
subsection. The authority granted is spe-
cifically limited to the acquisition of land
for the purpose of constructing and operat-
ing well fields and other withdrawal facili-
ties and for the right-of-way necessary for
the transmission of water to consumers.
The second sentence prohibits the use of
eminent domain to acquire such "water
rights" which were already being put to a
reasonable and beneficial use. The statuto-
ry prohibition of the use of eminent domain
ih one situation cannot be used as authority
for its use by implication in another, as the
statute must be strictly construed. Canal
Authority v. Miller, 243 So.2d 193 (Fla.
1970). All that Section 373.1961(7) Florida
Statutes (1975) accomplishes is to further
protect presently existing legal uses of
water. No implication can be drawn that
this section intends to include any "water
right" other than the permit that may be
granted by a water management district.
After all, if a use of water is both preexist-
ing and also reasonable and beneficial, after
two years, it must be either under permit or
it is conclusively presumed to be abandoned.
There was no necessity for the Water Re-
sources Act to provide for the condemnation
of an unexercised right to use water, as the
owner became subject to the permit provi-
sions of the law. There was no "taking" of
this right.


4-. -- 4, J











371 SOUTHERN REPORTER, 2d SERIES


In summary, we hold:
1. Prior to the adoption of the Water
Resources Act, Florida followed the reason-
able use rule; that is, a landowner, who, in
the course of using his own land, removes
percolating water to the injury of his neigh-
bor, must be making a reasonable exercise
of his proprietary rights, i e., such an exer-
cise as may be reasonably necessary for
some useful or beneficial purpose, generally
relating to the land in which the waters are
found;
2. There was no ownership in the waters
below the land, as the right of the owner to
ground water underlying his land was to
the.e.olf the water and not to the water
itself;
3. 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;
4. The diversion of water from the shal-
low-water aquifer is not a "taking" or an
appropriation of property for public use re-
quiring condemnation proceeding unless
there is a resulting damage to the land
itself, for example, a diversion of water to
the extent that the land becomes unsuitable
for cultivation, raising the level of flowing
waters to the extent that land is flooded,
etc.;
5. The landowner does not have a con-
stitutionally-protected property right in the
water beneath the property, requiring com-
pensation for the taking of the water when
used for a public purpose;
6. Just as legislation may limit the use
of property for certain purposes by zoning,
so it is that the right to the use of the
water may also be limited or regulated.
S7. The Water Resources Act now con-
trols the use of water and replaces the ad
hoc judicial determination in water man-
agement districts whe consumptive use
permitting is in force.
8. Juiter's remedy is only through
proper application for a- permit under the
Florida Water Resources Act.
For the above reasons, we answer the
certified question in the negative and hold
that Tequesta cannot be held responsible
for damages through inverse condemnation.


The decision of the district court of ap
peal is quashed and this cause is remanded
with instructions to affirm the summary,
judgment entered by the trial judge in f&a
vor of Tequesta.

ENGLAND, C. J., and BOYD, OVER.
TON AND SUNDBERG, JJ., concur.


.1"'~


1 ;,I


672 Fla.











349 SOUTHERN REPORTER, 2d SERIES


JUPITER INLET CORPORATION, a
Florida Corporation, Appellant,
V.
The VILLAGE OF TEQUESTA, a Florida
Municipal Corporation, and Thomas J.
Little, William E. Leone, William J. Tay-
lor, Dorothy M. Campbell and Almeda A.
Jones, Town Councilmen of the Village
of Tequesta, Appellees.
No. 76-783.
District Court of Appeal of Florida,
Fourth District.
Aug. 9, 1977.

Condominium corporation brought in-
verse condemnation action against village
alleging that village had taken water for
public purpose from shallow aquifer under-
neath corporation's land and to that extent
had deprived corporation of beneficial use
of shallow aquifer. The Circuit Court,
Palm Beach County, Lewis Kapner, J.,
granted summary judgment in favor of the
village, and the corporation appealed. The
District Court of Appeal, Green, Oliver L.,
Associate Judge, held that: (1) shallow
aquifer beneath surface of land owned by
corporation was form of private property,
and beneficial use of such aquifer by corpo-
ration could not be divested by government
for public purpose without due process of
law and payment of compensation, regard-
less of whether agents of government actu-
ally physically entered upon owner's proper-
ty in order to take water from aquifer or
whether they drew off water from beneath
owner's land by pumping, and (2) complaint
filed by condominium corporation against
village, alleging that condominium corpora-
tion was deprived of beneficial use of aqui-
fer by village's action in pumping nearby
well field for public purpose stated cause of
action for inverse condemnation.
Reversed and remanded.

1. Eminent Domain =13, 122
Right of a governmental entity to take
private property is limited to taking for


public purpose and with full compensation
to owner. West's F.S.A.Const. art. 10,
6(a).
2. Eminent Domain *=266
When governmental entity takes pri-
vate property for public purpose without
formal exercise of power of eminent do-
main, aggrieved property owner has cause
of action for inverse condemnation.

3. Eminent Domain 4*2(1), 270
When something is removed from its
owner's property by a governmental agency
and put to public use, it has been taken;
therefore, owner has been deprived by
government action of use and enjoyment of
what was his, and through suit for inverse
condemnation owner can compel govern-
ment to pay for what it has taken.

4. Constitutional Law 0=277(1)
Eminent Domain -84
Shallow aquifer beneath surface of
land owned by condominium corporation
was form of private property, and benefi-
cial use of such aquifer by corporation could
not be divested by government for public
purpose without due process of law and
payment of full compensation, regardless of
whether agents of government acLually
physically entered upon owner's property in
order to take water from aquifer or wheth-
er they drew off water from beneath own-
er's land by pumping. West's F.S.A.Const
art. 10, 6(a).

5. Eminent Domain *=293(1)
Complaint filed by condominium corpo-
ration against village alleging that corpora-
tion was deprived of beneficial use of aqui-
fer underneath its land by village's action
in pumping nearby well field for public
purpose stated cause of action for inverse
condemnation.


Paul C. Wolfe and Marjorie D. Gadarian
of Jones, Paine & Foster, West Palm Beach,
for appellant.
John C. Randolph of Johnston, Sasser &
Randolph, West Palm Beach, for appellees.


- ,


216 Fla.


~


c










JUPITER INLET CORP. v
Cie as, a.A
GREEN, OLIVER L, Associate Judge.
This is an appeal from a summary final
judgment in favor of appellee, The Village
of Tequesta. In granting the summary
judgment the trial court stated that it was
considering any factual conflicts in the light
most favorable to the appellant, Jupiter
Inlet Corporation. So the summary judg-
ment, in effect, was a determination by the
trial court that Jupiter Inlet's complaint
failed to state a cause of action.
The legal issue is whether a municipality
may be held responsible to an owner when
it takes water for a public purpose from the
shallow aquifer underneath the owner's
land, to the extent that it deprives the
owner of the beneficial use of the shallow
aquifer. We hold that in such a case a
municipality may be held responsible
through inverse condemnation, and further
that the plaintiff in this case has alleged
sufficient facts to state a cause of action.
Viewing the facts in the same light as did
the trial court, it appears that appellant
Jupiter is the owner of certain land upon
which it built condominium apartments.
Tequesta owns and operates a well field in
close proximity to Jupiter's property.
Pumping by Tequesta from the well field
has depleted the fresh water in the shallow
aquifer in the vicinity of the wells and also
underneath Jupiter's land. The withdrawal
of fresh water by Tequesta caused a salt
water intrusion into the shallow water aqui-
fer under Jupiter's land, making it unfit for
use as a water source. Jupiter had intend-
ed to use its shallow aquifer as a source of
potable water for its condominium apart-
ments. Because of the loss of its shallow
water aquifer, Jupiter is required to obtain
its water at a much greater -expense from
the deeper Floridan aquifer. The water
taken by Tequesta was used by the munici-
pality for a public purpose.
[1, 2 The right of a governmental enti-
ty to take private property is limited.
No private property may 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 the owner. Article
X, Section 6(a), Florida Constitution.


VILLAGE OF TEQUESTA Fla. 217
,34 Seo2dl21
When a governmental entity takes private
property for a public purpose without the
formal exercise of the power of eminent
domain, the aggrieved property owner has a
cause of action for inverse condemnation.
City of Jacksonville v. Schumann, 167 So.2d
95 (Fla. 1st DCA 1964).
[3] Because there is no constitutional
requirement that the government pay for
damage done to private property, as op-
posed to taking private property, much
hinges on how the word "take" is interpret-
ed. Florida courts have not, over the years,
been in consistent agreement on this mat-
ter, particularly where-as in this case-
there was no actual entry by the govern-
mental authorityon the 6wner's. land. It
seems apparent, however, that when some-
thingis removed from its owner's property
by a governmental agency and put to a
public use, it has been taken. The owner
has been deprived by government action of
the use and enjoyment of what was his, and
so through a suit in inverse condemnation
he can compel the government to pay for
what it has taken. Compare: State Road
Department of Florida v. Tharp, 146 Fla.
745, 1 So.2d 868 (1941); White v. Pinellas
County, 185 So.2d 468 (Fla.1966).

[4] The shallow aquifer beneath the sur-
face of land is a form of-prinvate property,
the beneficial use of whichthe owner of the
land cannot be divested by the government
for a public purpose without due process of
law and the payment of full compensation.
See Vails v. Arnold Industries, Inc., 328
So.2d 471 (Fla. 2d DCA 1976). That is true
whether agents of the government actually
physically enter upon the owner's property
in order to take the water from the aquifer
or whether they draw off the water from
beneath the owner's land by pumping. In
either event, the owner has been_deprived
of the beneficial use of his property by
government action for a public purpose.
[5] We conclude that the trial court
should not have granted summary judg-
ment and that Jupiter has alleged sufficient
facts to state a cause of action for inverse
condemnation.







..





218 Fla. 349 SOUTHERN REPORTER. 2d SERIES

Pursuant to Article V, Section 3(b)(3) of
the Florida Constitution we hereby certify.
to the Supreme Court as a matter of great
public interest, the following question:
Can a municipality he held responsible
through inverse condemnation for a tak-
ing, from private ownership for public
purposes, of underground shallow aquifer
water, to the extent that the owner is
deprived of the beneficial use of the aqui-
fer?
REVERSED and REMANDED for fur-
ther proceedings consistent with this opin-
ion.

ALDERMAN, C. J., and DOWNEY, J.,
concur.


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