IN THE SUPREME COURT OF FLORIDA


THE VILLAGE OF TEQUESTA, a
Florida municipal corporation,
and THOMAS J. LITTLE, WILLIAM E.
LEONE, WILLIAM J. TAYLOR,
DOROTHY M. CAMPBELL and ALMEDA
A. JONES, Town Councilmen of
THE VILLAGE OF TEQUESTA,

Petitioners,

vs.

JUPITER INLET CORPORATION,
a Florida corporation,

Respondents.


Case No. 52,223


BRIEF OF AMICI CURIAE
CITRUS COUNTY, PASCO COUNTY, S.C. BEXLEY, JR.,
L.S.B. CORPORATION and ANGELINE CORPORATION


RECEVE'El..: !JNi l

7~75o


Carlton, Fields, Ward, Emmanuel,
Smith and Cutler, P.A.
Post Office Box 3239
Tampa, Florida 33601
(813) 223-5366
Counsel for Pasco County, S.C. Bexley,
Jr., L.S.B. Corporation, and Angeline
Corporation.


Wendel, Broderick & Chritton,
Chartered
Post Office Box 5378
Lakeland, Florida 33803
(813) 646-5091
Counsel for Citrus County


I r/










INDEX


STATEMENT OF THE CASE

STATEMENT OF THE FACTS


CERTIFIED QUESTION OF GREAT PUBLIC INTEREST


ARGUMENT
Point I. -


Point II -


Point III -


Point IV -


THE RIGHT TO WATER IN THE SHALLOW
AQUIFER IS AN INTEREST IN PROPERTY 5


A. Introduction
B. Hydrologic Terminology and Background
C. Nature Of Property Rights In Water
D. Reasonable Use Doctrine
E. Reasonable Beneficial Use
F. Conclusion

ARGUMENT THAT THERE IS NO PRIVATE
PROPERTY RIGHT TO THE USE OF WATER A:D
THAT WATERS OF FLORIDA ARE VESTED IN
THE STATE

ARGUMENTS THAT FLORIDA NOW FOLLOWS
THE PRIOR APPROPRIATION RULE

ARGUMENTS AS TO THE APPROPRIATE
REMEDY


5-6
6-8
8-9
10-13
14-20
20


21-28


29


30-33


CONCLUSION

CERTIFICATE OF SERVICE


Page
1-2

3


, 5









CITATION OF AUTHORITIES


Florida Cases: Page

Carmazi v. Bd. of County Commissioners 24,25
108 So.2d 318 (Fla. Sup. Ct., 1959)

Cason v. Fla. Power Co. 8,9
76 So. 535 (Fla. Sup. Ct., 1917)

City of St. Petersburg v. Southwest Florida Water Mqt. Dist. 8
Case No. 76-1435, So.2d
(Fla. 2nd D.C.A., 1977)

Koch v. Wick 7;8,11,
87 So.2d 47 (Fla. Sup. Ct., 1956) 3(.

Labruzzo v. Atlantic Dredging and Const. Co. 8
54 So.2d 6/3 (Fla. Sup. Ct., 1951)

Pounds v. Darling 25,26
77 So. 666 (Fla. Sup. Ct., 1918)

Tampa Waterworks v. Cline 7
20 So. 780 (Fla. Sup. Ct., 1896)

Thieseu v. Gulf F. & A. Ry. Co. 24,25
78 So. 491 (Fla. Sup.Ct., 1912)


Other Cases:

Acton v. Blundell 10
-12 M & W 324 (1843)

Baeth v. Hoisveeu 21,22
157 NW2d 728 (N.D., 1968)

Baumann v. Smrha 21
145 F. Supp. 517 (D.C. Kansas, 1956), aff'd.
352 U.S. 863

Calif. Water Servicc Co. v. Sidebotham & Son) 9,16
37 Cal. RItr'. I ( D.C.A., Cal., 1964)

Canada v. City .: Shao.-n 13,31
64 P.2d 694 sC::a. Sup. Ct., 1937)



0ii









Other Cases:(con't.)

City of Pasadena v. City of Alhambra 1I
2 7 P.2d 17 (Cal. Sup.Ct., 1949).

n Gin S. Chow v. City of Santa Barbara
22 P.2d 5 (Cal. Sup. Ct., 1933)

.Herminghaus v. So. Cal. Edison Co.
252 P.-SAW6 (Cal. Sup. Ct., 1927)

Higday v. Nickolaus Z"rJ ~JL U ( tiic^J)
4W9 SW2d 859 (Mo. Ct. of Appeals, 1971)

Jarvis v. State Land Dept.
479 P.2d 169 (Ariz. Sup. Ct., 1970)

Katz v. Walkinshaw
74 P. 766 (Cal. Sup. Ct., 1903)

Knight v. Grimes
127 NW2d 708 (S.D., 1964)

Meeker v. City of East Orange
74 A. 379 (N.J. Ct. of Er. and Ap., 1909)
Qe. CetM-i+ c 4 i r Ct-,
Peabody v. City of Vallejo
K 40 P.2d 486 (Cal. Sup. Ct., 1935)

Rothrauff v. Sinking Spring Water Co.
14 A.2d 87 (Penn. Sup. Ct., 1940)

Rouse v. City of Kinston
.123 SE 482 (N.C. Sup. Ct., 1924)
C t L_---*M f )--I tL L- ---4UI j)- --
Schenk v. City of Ann Arbor
163 NW1 109 (Miich. Sup. Ct., 1917)
C0.' Ct-/^^-^- /?--) I- t )--I- te- -
State ex rel Emery v. Knapp
207 P.2d 440 (Kan. Sup. Ct., 1949)

Township of Hatfield v. Lansdale Mun. Auth.
168 A.2d 333 (Penn. Sup. Ct., 1961)
Z'c-t Y Lz a-t.-s- / /I t- ` I-) 5 1 CS t
Westphal v. City of N.ew York
69 NE 369 (N.-. Ct. of Ap., 1904)

Tulare Irr. Di .-t v. Lindsay-Str ath:re Irr. Dit)L.
45 P2d 972 (C1.. Su'pt. Ct., 1935)


iii


27


26,27


9,10,13,
32

9,13


17


21


13,32









Florida Statutes:


Chapter 373


Section
Section
Section
Section
Section
Section
Section
Section
Section
Section


373.016
373.016(1)
373.019(5)
373.1961
373.1961(7)
373.1962
373.1962 (2) (b)
373.1962(2) (d)
373.223
377.06


Other Statutes:

California, Water Commission Act, Statutes, 1913, p.1012
Section 11

California Constitution, Article XIV, Section 3.

Kansas Statutes, Section 82a-702

South Dakota Statutes, Section 61.0101(2)

Desert Land Act, Chap. 107, 19 Stat. at Large 377,
43 USCA 321


Florida Administrative Code:

Chapter 16G, Fla. Adm. Code
Chapter 16H, Fla. Adm. Code
Chapter 161, Fla. Adm. Code


Secondary Authorities:

93 C.J.S. Water 586

H. Baldwin and C.L. McGuinness, A Primer On Ground Water
(U.S. Geological l S rvey, 1963)

R. Cherry, J. S.:-wart and J. Mann, General IIyv':loloTgy
Of the Middle 'u'1 Area, Florida ...- -
No. G56, 1970)p
No. 56, 19701


27,29
22,
14
28
9,28
28
9
9,28
14 "


I SI




pt,* 't-A I)A di 1 44 &
+IL' q '-'Y



Secondary Authorities: (con't.)

Regulation and Information Pertaining to Determination
Of Rights To The Use Of Water, California State
Water Resources Control Board (1973). u,-- t,-4 & 16,17

Maloney, Ausness and Morris, A Model Water Code (1972) 14,15

Maloney, Plager and Baldwin, Water Law and Administration-
The Florida Experience. (1968) 16

Maloney and Ausness, A Modern Proposal For State
Regulation Of Consumptive Uses of Water, 22
Hastings Law Rev. 523 (Feb. 1971) 29

Trelease, Bloomenthal and Gerand, Cases on Natural
Resources (1965) 8

R. Clark, Water and Water Rights, Vol. 1, '153,
345 (1967) 8,9

Farnham, Water and Water Rights, Vol. III,
2718,2719 L .M ,<- 10










STATEMENT OF THE CASE


In this brief, CITRUS COUNTY, PASCO COUNTY, S.C. BEXLEY,

JR., L.S.B. CORPORATION, and ANGELINE CORPORATION, will be

referred to collectively as "Amicus". Petitioner, the Village

of Tequesta, et al., will be referred to as "Petitioner" or

"Tequesta". Respondent, Jupiter Inlet Corporation, will be

referred to as "Respondent" or "Jupiter".

Jupiter filed an action in inverse condemnation against

Tequesta in Circuit Court of Palm Beach County alleging that

Tequesta had taken Jupiter's right to use the percolating waters

in the shallow aquifer. Jupiter sought damages for the taking

of its right to the use of the shallow aquifer and an injunction

prohibiting Tequesta from further pumping water from the shallow

aquifer. The Circuit Court held that Jupiter had failed to

state a cause of action and dismissed Jupiter's complaint. The

Fourth District Court of Appeal found that Tequesta's well

field had depleted the fresh water in the shallow aquifer

below Jupiter's property to the extent that Jupiter had been

deprived of its use and enjoyment of this water. Further, the

Court held that the right to the use of this shallow aquifer

is a form of private property which caLnnot be divested by a

municipality for a public purpose without due process of law

and the payment of full compensation. While the District Court

reversed the Trial Court, the District Court did certify to









p Supreme Court the following question as one of great public
interest:

CAN A MUNICIPALITY BE HELD RESPONSIBLE
THRWOU INVERSE CEMmATTOH FOR A TAKING,
FPHA PRIfWaE omm lpS P oR PUBLIC PURPOSES,
OP ortoESGrOnD, sIttUW AQUIFRR WAOrn, TO
THE EXTENT TOF Tt OSE R IS DEPRIVED OF
THE BENEFICIAL USE OF THE AQUIFER?


-2-





1'



STATEMENT OF THE FACTS

Tequesta owns and operates four well fields. These

well fields extract percolating ground water that is then

transported from the well field sites for sale away from the

well fields. Currently, Tequesta sells the water to residents

of the Village of Tequesta, the Town of Jupiter, Palm Beach

County and Martin County.1 One of the well fields is located

some twelve hundred feet (1200') from Jupiter's property.2

Tequesta does not provide water to Jupiter.
The well field near Jupiter's property pumps water from

the shallow aquifer. This shallow aquifer extends under Jupiter's

property and as a result of Tequesta's pumping, salt water has

replaced the fresh water in the shallow aquifer under Jupiter's
land.3 Because of the salt water intrusion, Jupiter cannot

utilize the shallow aquifer under its property as a source of

potable water.

















1. (R-186)
2. (R-146)
3. (R-255)
-3-





A r,


CERTIFIED QUESTION.OF^GREAT-PUBLIC-INTEREST

CAN A MUNICIPALITY.BE-.HELD-RESPONSIBLE
THROUGH INVERSE -CONDEMNATION -FOR A-
TAKING, FROM PRIVATE OWNERSHIP--FOR- PUBLIC
PURPOSES, OF UNDERGROUND :SHALLOW AQUIFER
WASTER, TO THE -EXTENT -THAT -THE OWNER IS
DEPRIVED OF THE-BENEFICIAL :USE OF-TIIE
AQUIFER? -- ---










ARGUMENT

I.

THE RIGHT TO WATER IN THE SHALLOW
AQUIFER IS AN INTEREST IN PROPERTY.



A. Introduction


The matter before the Court is in effect a quiet-title

action, an action to determine whether Jupiter has a property

interest in the waters of the shallow aquifer beneath its

property. Tequesta contends that Jupiter has no interest in

the use of the fresh water in the shallow aquifer. Jupiter

contends and the Fourth District Court of Appeal agreed that

the right to use of the fresh water in the shallow aquifer is

an interest in real property and is private property. CITRUS

COUNTY, PASCO COUNTY, S.C. BEXLEY, JR., L.S.B. CORPORATION and

ANGELINE CORPORATION support Jupiter's position and the decision

of the Fourth District Court of Appeal.

To assist the Court, we have structured our analysis

of water rights in a manner that hopefully will be beneficial

to the Court. In addition to the complex legal issues involved,

the Court must also deal with the complex and, often times, mis-

understood science of hydrology. Hydrology is the science involved

with understanding how and why water moves. Historically,

water, and especially ground water, has been treated as

an unknown and mysterious substance. In fact, we now know that


-5-









Shydrology is an exact science. We begin by describing some

of the hydrologic terms that are involved in this case

(p. 6 through 8 ).

The rights to water vary throughout.the United States.

Our next section (pages 8 through 9 ) discuss how the various

jurisdictions treat the right to water; in effect, we define

what type of interest the right to water is. Historically,

Florida has followed the reasonable use doctrine, so the next

section (pages 10 through 13 ) defines what the right to water

is under this doctrine.

With the passage of the Florida Water Resources Act

of 1972, Florida adopted a reasonable beneficial use standard.

The next section then discusses the impact of changing from

Sthe "reasonable use" standard to a "reasonable beneficial use"

standard.


B. Hydrologic Terminology and Background


There are two types of water--surface water and ground

water. Surface water is the water wh:-ch flows or is contained

on the surface of the earth. Examples are rivers, lakes,

streams and ponds. Ground water is water which flows or is

contained below the surface of the earth. We are concerned in

this case with ground water, water in the ground.

Florida courts have followed the traditional classifi-

cations of ground water and have classified ground water as


-6-









either an underground stream or percolating water.4 Percolating

water includes all water which passes through the ground beneath

the surface of the earth without a definite channel and which

is not shown to be supplied by a definite flowing stream.

This water oozes, seeps, filters and otherwise circulates

through the interstices of the subsurface strata without

definable channel.5 The Florida Supreme Court held that

ground water is presumed to be percolating water unless it is

affirmatively shown that the water is flowing in an underground

stream.6 The water in the shallow aquifer under Jupiter's

property is percolating water and has been treated as such by

all the parties.

Beneath the earth's surface there are various zones of

materials, such as sands, clays, shale and limestone. Certain

of these materials contain enough water that they can be used

for water supply purposes. These water bearing zones or

strata are called aquifers. In Florida there are two basic

types of aquifers. One is the shallow aquifer, which is also

referred to as a water table aquifer. The other aquifer is the

deep artesian aquifer, which is commonly referred to as the

Floridan Aquifer. In this case we are dealing with the shallow

or water table aquifer. The level of the water in the shallow



4. Tampa Water Works v. Cline, 20 So. 780 (Fla. Sup. Ct., 1896),
Koch v. Wick, 87 So.2d 47, 48 (Fla. Sup. Ct., 1956).
5. 93 C.J.S. Water 186.
6. Tampa Water Works v. Cline, 20 So. 780, 784 (Fla. Sup. Ct.,
1896).


-7-









aquifer rises with rainfall and falls with pumpage, vertical

seepage and absorption by the roots that extends into the

aquifer.7


C. Nature Of Property Rights In Water


Water rights or the rights to the use of water are

classified, protected, and administered under two doctrines in

the United States, the reasonable use doctrine and the prior

appropriation doctrine.8 Historically, the Florida courts

have followed the reasonable use doctrine, which also is

referred to as the rule of correlative rights.9

The right to the use of water is considered to be an

interest in real property under both the reasonable use

) doctrine and prior appropriation doctrine.10 The Florida

courts have followed the general rule and recognized that there

is a property right in the percolating waters, characterizing

the property right as correlative and "usufructary", that is,



7. See, City of St. Petersburg, Florida v. Southwest Florida
Water Management District, Case No. 76-1435, So.2d
(Fla. 2nd D.C.A., 1977) Opinion filed October 12, 1977.
Also, R. Cherry, J. Stewart and J. Mann, General Hydrology
Of The Middle Gulf Area, Florida, 45, 52 (U.S. Geological
Survey, Report Of Investigation No. 56, 1970); H. Baldwin
and C.L. McGuinness, A. Primer On Ground Water (U.S. Geological
Survey, 1963).
8. F. Trelease, H. Bloomenthal and J. Gerand, Cases On Natural
Resources, 1-8 (1965).
9. Labruzzo v. Atlantic Dredging and Construction Co., 54 So.2d
673, 675 (Fla. Sup. Ct., 1951) and Cason v. Florida Power Co.,
76 So. 535, 536 (Fla. Sup. Ct., 1917), Koch v. Wick, 87 So.2d
47, 48 (Fla. Sup. Ct., 1956).
r 10. 1 Wiel, 1283 (3rd ed., 1911) and R. Clark, Water and Water
Rights, Vol. 1, 53, 345 (1967).


-8-










p a right of use.11 Other jurisdictions have also analyzed
the right to the use of water as an interest in real property:

for determining title in a quiet-title action;12 for the pur-

poses of constitutional protection;13 and for satisfying the

requirements of the statutes of fraud, descent and inheritance
and taxation.14

A water right, like other property interest, may be

sold or otherwise dealt with like other property interests,

transferred, such as by leasing the right to another party or

by descent through the provisions of a will.15 In addition to

judicial recognition of the private property right to water,

the Florida Legislature has also recognized water rights as

private property. Sections 373.1961(7), 373.1962(2)(b) and

)373.1962(2)(d), F.S., specifically provide for the exercise of

the power of eminent domain for the purpose of acquiring water

and water rights.

Thus, it must be concluded that the right to the use of

water is a property right for it is the ownership of land that

gives rise to the right to the use of the water.



11. Cason v. Florida Power Co., 76 So. 535, 536 (Fla. Sup. Ct.,
1917).
12. California Water Service Company v. Edward Sidebotham and
Sons, Inc., 37 Cal. Rptr. 1 (1st D.C.A., Cal., 1964), and
Higday v. Nickolaus, 469 SW2d 859 (Ct. of Appeals, Missouri,
1971).
13. Jarvis v. State Land Dept., 479 P.2d 169, 173 (Ariz. Sup.
Ct., 1970).
14. R. Clark, Water and Water Rights, Vol. 1, 153, 345 (1967).
15. Id., at 355.


-9-










D. Reasonable Use Doctrine


Having concluded that the right to the use of water is

a private property right, we shall define the nature and extent

of that right.

At common law the right to the use of percolating

ground water was defined in Acton v. Blundell.16 Under the

common law percolating waters were considered as part and parcel

of the land in which they were found and belonged absolutely

to the owner of such land. The landowner without liability

could withdraw any quantity of water for any purpose even

though he drained all the water from beneath the adjoining land.

The common law rule is referred to as the "absolute ownership

rule".

At an early date the American courts expressed dis-

satisfaction with the absolute ownership rule and began applying

what has come to be known as the "reasonable use rule".17 Gen-

erally, the rule of reasonable use is an expression of the maxim

that each landowner is restricted to a reasonable exercise of

his own rights and a reasonable use of his property, in view of

the similar rights of others.18




16. 12 M & W 324 (1843).
17. Higday v. Nickolaus, 469 SW2d 859, 865 (Ct. of Appeals,
Missouri, 1971).
18. Farnham, Water and Water Rights, Vol. III, 2718, 2719.


-10-










In 1956, the Florida Supreme Court followed the reasonable

use rule in a case involving percolating ground water.19 In

this case the Court rejected the absolute ownership rule and

expressed the reasonable use rule as follows:

"The opinions expressed in these cases
harmonize the pronouncements in Labruzzo v.
Atlantic Dredging Construction Co., 54 So.2d
673, 29 A.L.R., 1346, that the American courts
have receded from the old common law rule
that an owner had an unrestricted right to
draw percolating water from his land and
to adopt the rule that the right is bounded
by reasonableness and beneficial use of land."
Koch v. Wick, 87 So.2d 47 (Fla. Sup. Ct., 1956).


Earlier, the Florida Supreme Court described the right

to use of percolating waters as follows:

"The property rights relative to the passage
of waters that naturally percolate through
the land of one owner to and through the
land of another owner are correlative; and
each landowner is restricted to a reasonable
use of his property as it affects subsurface
waters passing to or from the land of another."
Cason v. Florida Power Co., 76 So. 535, 537
(Fla. Sup. Ct., 1917).


In Koch,20 the Florida Supreme Court enunciated its

position as to the right of a governmental entity to make with-

drawals of percolating ground waters for sale off the premises.

In this case an adjacent property owner sought an injunction

to prevent further damaging withdrawals and damages to compensate



19. Koch v. Wick, 87 So.2d 47 (Fla. Sup. Ct., 1956).
20. supra.


-11-









for past withdrawals. The plaintiff charged that the well

field had reduced the productivity of his land and had con-

verted it into a "desert waste". The trial court dismissed

the plaintiff's complaint and an appeal was filed with the

Florida Supreme Court. The Supreme Court reversed with direc-

tions to the trial court to reinstate the complaint. In

reaching its decision the Supreme Court did enunciate certain

legal positions relative to municipality's withdrawals of

percolating water for sale off the premises. The following

principles from that case are applicable to the present case:

1. A municipality is not in a favored position because

the water is to be furnished to the public.

2. The property owner's right to use the percolating

waters is bounded by the reasonableness and beneficial use

of the land.

3. With respect to the use of the percolating waters,

a municipality is held to the same rule as an individual.

4. The reasonable use rule does not per se prohibit the

withdrawal of percolating water for distribution and sale off 6

the premises.

The position adopted by the Florida Supreme Court is

consistent with and harmonious with the majority of the modern

decisions within those states following the reasonable use rule.

Research shows that the overwhelming American precedent finds

that a property owner may not withdraw percolating waters and


-12-









Convey them off the lands from which they are pumped, if

thereby, others whose lands overlie the common supply are

injured.21

The Michigan Supreme Court perhaps described the

rights of a municipality to the percolating waters as

follows:

"I have said that, in view of the circum-
stances, the right of the defendant
[municipality] to make use of the water
is a qualified right. It is qualified
by this rule of reasonable user... There
is no apparent reason for saying that,
because defendant is a municipal corpora-
tion, seeking water for the inhabitants
of the city, it may therefore do what a
private owner of the land may not do.
The city is a private owner of this land,
and the furnishing of water to its inhabi-
tants is its private business. It is
imperative that the people of the city have
water; it is not imperative that they secure
it at the expense of those owning lands
adjoining lands owned by the city." Schenk v.
City of Ann Arbor, 163 NW 109 (Mich. Sup.
Ct., 1917).


From the foregoing it is concluded that under the rea-

sonable use doctrine, Florida, as well as the other states

following that doctrine, considered the right to the use of

water as a private property right.




21. See Higday v. Nickolaus, 469 SW2d 859 (Ct. of Appeals,
Missouri, 1971); Jarvis v. State Land Dept., 479 P.2d
169 (Ariz. Sup. Ct., 1970); Schenk v. City of Ann Arbor,
163 NW 109 (Mich. Sup. Ct., 1917); Meeker v. City of East
Orange, 74 A. 379 (Ct. of Errors and Appeals, N.J., 1909;
Rouse v. City of Kinston, 123 SE 482 (N.C. Sup. Ct., 1924);
Canada v. City of Shawnee, 64 P.2d 694 (Okla. Sup. Ct., 1937);
Rothrauff v. Sinking Spring Water Co., 14 A.2d 87 (Penn.
Sup. Ct., 1940); Township of Hatfield v. Lansdale Municipal
Authority, 168 A.2d 333 (Penn. Sup. Ct., 1961).


-13-










SE. Reasonable Beneficial Use


With the passage of the Florida Water Resources Act

of 197222 the reasonable beneficial standard came into existence.

Chapter 373, F.S., provided the statutory authority for the

implementation of programs requiring permits for the use of

water. The establishment of the permitting program is not

mandatory, but is discretionary. Once implemented, Section

373.223, F.S., requires than an applicant must establish that

his use of the water (1) is a reasonable-beneficial use;

(2) will not interfere with any presently existing legal use

of water and (3) is consistent with the public interest.

Reasonable-beneficial use is defined as "the use of water in

Such quantity as is necessary for economic and efficient

utilization, for a purpose and in a manner which is both

reasonable and consistent with the public interest."23 As

explained in the commentary of the Model Water Code, which is

the foundation for Chapter 373, "the reasonable-beneficial use

standard... is an attempt to combine the best features of the

reasonable use and beneficial use rules."24 Under the reasonable

use rule a water user could be making a wasteful or inefficient

use of water and he could continue to do so as long as no one

was being damaged or injured. Under the beneficial use rule of



22. Chapter 373, F.S.
23. Section 373.019(5), F.S.
24. F. Maloney, R. Ausness & S. Morris, A Model Water Code,
) 171 (1972).


-14-










the prior appropriation system the water user only had a right

to the water he was using for beneficial purposes. Seeking

to promote the conservation, development and proper utilization

of our water resources, the expressed intent was to require

the reasonable use to be also for a beneficial use and, thusly,

wasteful uses by the reasonable users would be eliminated.25

The net result of adopting the "reasonable-beneficial

use" standard is to place the beneficial use limitation of

the prior appropriation system on the present "reasonable use"

doctrine. Florida has not replaced the reasonable use rule,

it has made an additional limitation to the reasonable use

doctrine. In spite of the inclusion of the word "beneficial",

the statutory definition is basically a restatement of the

Florida case law on reasonable use.

The adoption of the "reasonable-beneficial" use standard

has not moved Florida into the position of adhering to the prior

appropriation doctrine. Throughout the commentary of the Model

Water Code the drafters carefully pointed out their refusal to

adopt such a system.26

Florida was not the first to merge the reasonable use

rule and the beneficial use rule. California merged the two
27
in the 1928 amendment to the California Constitution.7 California

has utilized the reasonable and beneficial use standard in water


25. Id, at 171.
26. Id, at 81 and 158-159.
27. Article XIV, Section 3.


-15-









Rights cases since 1928. The California courts have had

numerous opportunities to define the reasonable and beneficial

use rule and the California experiences and cases provide

valuable insight and guidance as Florida moves towards the

reasonable-beneficial use rule.

Before proceeding it should be pointed out that in

California d Floridahe rights of the overlying landowner

to the percolating waters are analogous to the rights of the J]

riparian owner in a surface stream.28 So cases involving and

describing riparian rights are useful in understanding the

extent and nature of the right to the use of percolating water,

or overlying rights as so defined and used in California.

California courts agree that the right to use water is

Sa property right and may be protected against infringement by y

appropriate.court action as any other property right.29 :i'

California courts have classified the.rights to the percolating

waters as overlying, appropriative and prescriptive. An

overlying right, which is analogous to that of the riparian

owner on a surface waterbody, is the owner's right to withdraw

ground water for use on the overlying land; the right is based

on ownership of land and is appurtenant thereto.30 As between


28. City of Pasadena v. City of Alhanbra, 207 P.2d 17, 28
(Cal. Sup. Ct., 1949) F. Maloney, S. Plager and F. Baldwin,
Water Law and Administration The Florida Experience, 153
(1968).
29. Regulations and Information Pertaining to Determination of
Kignts to tne use of water, 29 (California state water resources
Control Board, lI73J).
30. California Water Service Co. v. Sidebotham and Sons, Inc., 37
Cal. Rptr. 1 (1964).


-16-









Sriparians, or, in the case of percolating water, overlying

owners, priority of use establishes no priority of right. In

other words, one cannot claim a superior right merely because

he used the water first. Riparian rights or overlying rights

are neither created by use nor lost by nonuse. Owners of

land overlying percolating waters have the first right

to withdraw water for reasonable beneficial use on their

overlying lands. The right of each owner is equal and correla-

tive to the right of all the other owners similarly situated,

and in the case of insufficient water to fully supply the require-

ments of all the overlying owners,'the available supply must be
31
equitably apportioned.3

An appropriative right refers to the right to take

Water for other than riparian or overlying uses. Unlike an

overlying right, the right of an appropriator arises upon an

actual taking of water. An appropriative right is granted by

statute and may be lost by nonuse.32 Where a taking is wrongful,

it may ripen into a prescriptive right.

All legal water users, overlying, appropriative or pre--

scriptive, only have the right to take such amount as they

reasonably need for beneficial purposes. The rights and rela-

tionships between the various water users was described by the


31. Regulations and Information Pertaining to Determination of
Rights to the Use of Water, California State Water Res. Control
Board.
32. Id, at 26.
33. Katz v. Walkinshaw, 74 P. 766 (Cal. Sup. Ct., 1903).

-17-










California Supreme Court as follows:

"Public interest requires that there be
the greatest number of beneficial uses
which the supply can yield, and water
may be appropriated for beneficial uses
subject to the rights of those who have
a lawful priority... Any water not
needed for the reasonable beneficial
uses of those having prior rights is
excess or surplus water... surplus water
may rightfully be appropriated on pri-
vately owned land for nonoverlying uses,
such as devotion to a public use or
exportation beyond the basin or watershed
...It is the policy of the state to foster
the beneficial use of water and discourage
waste... Proper overlying use, however, is
paramount, and-the right of a aappropriiatr,
being limited to the amount of the surplus,
must yield to that of the overlying owner
in the event of a shortage... As between
overlying owners, the rights, like those
of riparians, are correlative... ; each
may use only his reasonable share when
water is insufficient to meet the needs
of all." City of Pasadena v. City of
Alhambra, 207 P.2d 17, 28 and 29 (Cal. Sup.
Ct., 1949).


Utilizing the California reasonable beneficial use

standard in the instant case, this Court would have to conclude

that Jupiter as an overlying property owner has a right to

make use of the shallow aquifer. Since Tequesta is not using

its water on the overlying land, Jupiter would have a superior

right to the water. A

Even if Tequesta were an overlying user, which it is

not, the available water would have to be equitably apportioned

among those having a legal right to the water. While Tequesta'*

brief and the amici briefs supporting Tequesta all agree that

Chapter 373, F.S., is aimed towards an equitable apportionment


-18-








of the water resources, there is nothing equitable or reasonable

about Jupiter not having the right to any of the percolating

water. In Tequesta's and supporting amici's views, an equitable

apportionment means that Tequesta is entitled to all of the

percolating waters. This position is certainly inconsistent

with the reasonableness requirement of the reasonable-beneficial

use rule. Reasonableness use means that the right of each

overlying owner is equal and correlative to the right of all

other owners. ~3>d-U Y

In view of the fact that Tequesta's well field has

caused salt water to intrude into the shallow aquifer beneath

Jupiter's land, Tequesta's and supporting amici's positions are

also inconsistent with the legal position adopted by the Califor-

nia and Florida courts that percolating waters may not be trans-

ported off the lands from which they are pumped, if thereby, "

others whose lands overlie the common supply are injured or

damaged.

In sum, the reasonable-beneficial use standard has

only placed the additional limitation of beneficial use on the

reasonable users of water. This was done to eliminate the waste-

ful use of water by the reasonable users. Florida has not

eliminated the reasonable use standard that recognizes that the

property rights relative to percolating water are correlative.

With correlative rights Tequesta and Jupiter are each entitled t

share equitably in the use of the percolating waters of the /



-19-, c 4

/

_kr


El a~~


UM~*Y Cc










P shallow aquifer. To date, Tequesta has failed to recognize

Jupiter's right to the use of the shallow aquifer. f

The reasonable use rule also prevents Tequesta from

withdrawing percolating waters in order to convey them for

sale, if the withdrawals injure the common supply. In this

case, Jupiter has shown as a matter of fact that Tequesta's

pumping is responsible for the salt water intrusion of the

shallow aquifer beneath Jupiter's property. Accordingly,

Tequesta is answerable to Jupiter for its action.


F. Conclusion


In summary, the right to the reasonable use of the

shallow aquifer has been and is a property right in Florida.

The right to the reasonable use of water is correlative, is

shared with all other landowners, and is derived from ownership

of land.




















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II.


ARGUMENT THAT THERE IS NO PRIVATE PROPERTY
RIGHT TO THE USE OF WATER AND THAT WATERS
OF FLORIDA ARE VESTED IN THE STATE.



Tequesta is joined byamici, Pinellas County, the South

Florida Water Management District and the West Coast Regional

Water Supply Authority in asserting that Chapter 373, F.S., makes

all waters the property of the State of Florida and thereby

removed any private property right to the use of water. This

assertion lacks any legal basis. Chapter 373, F.S., makes no

declaration to the effect that water is the property of the

state.

In support of the position that water is the property

Sof the state, appellant and amici cite cases from Kansas,3

North Dakota,35 and South Dakota.36 Kansas provides:

"Section 82a-702 Dedication of the Use
Of Water
All water within the State of Kansas
is hereby dedicated to the use of the
people of the state subject to the con-
trol and regulation of the state in the
manner herein prescribed."

The statute then requires all water users to have permits from

the city engineer, who is directed to appropriate the water

based on the prior appropriation doctrine. South Dakota



34. State ex rel Emery v. Knapp, 207 P.2d 440 and Baumann v.
Smrha, 145 F. Supp. 617 (D.C. Kansas, 1956), aff. 352
U.S. 863.
35. Knight v. Grimes, 127 NW2d 708, (S.D., 1964).
L 36. Baeth v. Hoisveeu, 157 NW2d 728 (N.D., 1968).


-21-









provides:37

"2. That all water within the state is
the property of the people bf the state,
but the right to the use of water may be
acquired by appropriation in the manner
provided by law."

North Dakota also declared that all waters belong to the public

and are subject to appropriation for beneficial use.38

There is little, if any, similarity between Chapter 373

and the Kansas, North Dakota and South Dakota Statutes. Unlike

Kansas, Florida has not dedicated the use of water to the

people. Unlike North Dakota and South Dakota, Florida has

not declared the water to be the property of the State. All

Florida said was that "waters in the state are among (it' basic

resources. Such waters have not heretofore been conserved or

Fully controlled so as to realize their full beneficial use.39

This section does not declare ownership of the property to be

vested in the state, nor does it mandate that all of the waters

are subject to appropriation.

There are numerous other fallacies with the position

that the water belongs to the state. Under the common law

recognized by the Florida courts, the right to the use of

water is a property right. At some point in time the property

owners would have to be divested of that right. Appellant and

amici urge that this occurred with the passage of the Florida


37. Section 61.0101(2), S.D.C.
38. Baeth, supra, at 730.
39. Section 373.016(1), F.S.


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SWater Resources Act of 1972. First, the Act did not declare

ownership of the water to be vested iri the state. Assume

though that it did. With ownership vested in the state,

permits for use would have been made mandatory, as they were

in Kansas, North Dakota and South Dakota. Otherwise, a

water user would have no legal right to the use of the water.

The establishment of the permitting system is entirely PA 7

discretionary, not mandatory. In fact, at this date, permitting

has not been established in two of the water management districts .
40 .
and a portion of the third district.4 Certainly, a property

right cannot be divested at the discretion of an administrative

agency. Additionally, at no point does Chapter 373 state that i

water is to be apportioned. The term apportionment does not j /C

Appear in Chapter 373. 'v4 ^ J6Y~ r' .'/YI

There is an additional legal impediment to shifting

Florida to the appropriation doctrine of Kansas, North

Dakota and South Dakota. When Florida became a state, there

was no reservation of water rights in the conveyance from the

United States. In other words, where property was conveyed

into private ownership in Florida, included in the ownership

of property was the right to use the water. In Kansas, North

Dakota and South Dakota, the patents for land were governed by
41
the Desert Land Act. Under the Dese::t Land Act water rights


40. See, Chapters 16G, 16H, and 161, F.A.C.
41. Ch. 107, 19 Statutes at Large 377 (43 U.S.C.A. 1321).

a)


-23-






4


were specifically reserved and placed in state ownership.

Subsequently, the right to the use of water was defined by

statute. In effect, the right to water was a statutory right,

not a property right. So when Kansas, South Dakota and

North Dakota moved to prior appropriation, the change was

merely a change in a statutory right.

Under the appellant's and amici's rational, oil and

gas in Florida would belong to the State. The policy statement

of Section 373.016, F.S., is comparable to Section 377.06, F.S.,

wherein the state has provided a permitting process to control

and conserve the oil and gas resources in the state. Although

permits are necessary in order to pump or extract oil and gas,

no one has suggested that oil and gas are no longer private

property. To require permits for the consumptive use of water

in order to obtain the maximum utilization and beneficial use

of our water resources is a proper exercise of the police power,

but the permitting requirement should not be construed to mean

that a property owner has been deprived of his right to the

reasonable beneficial use of water.

In line with the position that the right to water is

not private property, South Florida Water Management District4

argues that not all property rights are entitled to protection.

It then cites the Thieseu43 and Carmazi44 cases for support.



42. Brief, 17, 18.
43. Thieseu v. Gulf F. & A. Ry. Co., 78 So. 491 (1912)
44. Carmazi v. Board of County Commissioners, 108 So.2d 318 (1959).


-24-










we would agree with the decision reached in those decisions.

In both of those cases the rights involved, rights of

navigation, were rights that were shared in common with the

public and the rights of navigation are not derived from

the ownership of property. The right of navigation on public

waters is not a private property right, it is a public right,

shared by all who have access to the navigable waters.

As to the instant case, the Thieseu and Carmazi cases

have no application because the public has no right to the use

of the waters in the shallow aquifer. The right to the use of

the water is a private property right and is derived from

ownership of property.

Illustrative and supporting of this is the case of

Pounds v. Darling.45 In Pounds, the City of Orlando, by

ordinance, sought to prevent persons from bathing in a lake

which was used for the City's water supply. The lake was a

privately owned lake and the City did not own any of the waters

of the lake, nor any land bordering the lake. The court held

that the right to bathe in the lake was a property right and

subject to reasonable regulation under the police power. How-

ever, the Court went on to find that the ordinance prohibiting

the swimming in the lake would deprive the riparian owner of

a reasonable use and enjoyment of his own property, which is

equivalent to depriving him of his property, and that without

due process or just compensation.



45. 77 So. 666 (Fla. Sup. Ct., 1918)


-25-









In the Pounds case, the right to swim in the lake was

the private property interest that was being deprived. In the

instant case, the property right is the right to the reasonable

use of the percolating waters in the shallow aquifer.

Tequesta suggests46 that Jupiter is making the highest

and most beneficial use of its land and has not suffered a

taking. Tequesta misses the point. Jupiter's right to the use

of the land surface is not at issue, it is Jupiter's right to

the use of the shallow aquifer that has been taken.

As stated earlier, the use of water does not create the

right, and disuse cannot destroy or suspend it.47 In 1913,

the California Legislature sought to alter this rule by

adopting the Water Commission Act.48 Section 11 of this Act

provided that waters of the state not theretofore put to a

useful and beneficial purpose would be deemed public waters

and subject to appropriation. Appellant and amici urge that the

same interpretation should be given to Chapter 373 in the

instant case. Additionally, that Section provided that should

any riparian owner fail to put the waters to a useful or

beneficial purpose for any continuous period of ten years,

such nonuse would be deemed to be a conclusive presumption of

abandonment of the riparian right. The California courts held

Section 11 to be unconstitutional as it constituted a taking of


46. Brief, 2
47. Herminghaus v. So. California Edison Co., 252 P. 607, 613
(Cal. Sup. Ct., 1927)
48. Cal. Stat. 1913, p. 1012.


-26-










property without due process or just compensation. The

courts recognized that riparian rights existed whether or not

they were being presently exercised.49 After the courts

declared Section 11 unconstitutional, Section 3 of Article 14

of the California statute was amended in 1928 to provide

specifically for the protection of the actual reasonable

beneficial uses of the riparian and the prospective reasonable

beneficial uses of the riparian.5

In short, the California courts, while willing to

impose the new reasonable beneficial use standard on all

water users, would not deny the property owner's private

right to the use of water even if it was not being presently

exercised.

The California experience shows that the reasonable

beneficial use standard can be imposed on the private property

right to the use of water. There is no basis for the West

Coast Regional Water Supply Authority to suggest that in order

for Chapter 373 to function, all prior, unexercised common law

rights to use use water must be terminated.51 Chapter 373 can

be implemented in a manner that recognizes the property right

to the use of water and it can be done so in a manner that will

accomplish the objectives and policies stated in Chapter 373.



49. See, Herminghaus v. So. Calif. Edison Co., 252 P. 607 (Cal.
Sup. Ct., 1927); Tulare Irr. Dist. v. Lindsay-Strathmore
Irr. Dist., 45 P.2d 972 (Cal. Sup. Ct., 1935); Gin S. Chow v.
City of Santa Barbara, 22 P.2d 5 (Cal. Sup. Ct., 1933) and
Peabody v. City of Vallejo, 40 P.2d 486 (Cal. Sup. Ct., 1935).
50. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 45 P,2d
972, 985-6 (Cal. Sup. Ct., 1935).
51. Brief, 11.


-27-










III.


ARGUMENTS THAT FLORIDA NOW FOLLOWS
THE PRIOR APPROPRIATION RULE.


"First in time is first in right" is the foundation

on which the prior appropriation doctrine is based. Priority

in time has never been a concept recognized under the reasonable

use doctrine. The adoption of the "reasonable beneficial use"

standard did not move Florida to the prior appropriation

doctrine and the commentary to the Model Water Code makes it

clear that there was no intention to adopt the prior appro-

priation doctrine.

Recognizing and agreeing that the primary objective of

Chapter 373 was to establish an orderly and equitable system for

attaining the maximum utilization and beneficial use of our

water resources, priority in time of use in no way accomplishes

these objectives. The experiences under the prior appropriation

doctrine in fact show that first in time often encourages waste

and discourages new more efficient water using techniques.55

Rather than repeat and duplicate the discussions under

Arguments I and II explaining why Florida does not follow the

prior appropriation doctrine we will direct your attention to

pages 14-20 which also deal with this issue.




55. Maloney and Ausness, A Modern Proposal For State Regulation
Of Consumptive Uses of Water, 22 Hastings Law J. 523, 527
(February 1971).


-29-


L










J' IV.


ARGUMENTS AS TO THE APPROPRIATE REMEDY


Because of Tequesta's well field, the shallow aquifer

was no longer available to Jupiter as a water supply source.

Consequently, Jupiter in order to use its property had to

find an alternative water supply. If Tequesta had recognized

in the beginning that Jupiter had a right to the use of the

shallow aquifer, Tequesta could have reduced its pumpage so

that Jupiter could also withdraw water from the shallow aquifer

or, in the alternative, Tequesta could have elected to provide

water to Jupiter. As it turns out, Tequesta elected not to

pursue either of these alternatives and the litigation followed.

Jupiter wanting to move forward with its development was

fortunate in finding an alternative water supply source.

Having sought an alternative water supply does not negate the

damages inflicted or restore the property rights that have been

taken. Although Jupiter has secured an alternative and more

expensive water supply, it is informative and helpful to examine

the practical views taken by the various courts throughout the

U.S. when confronted with this same situation.

In the Koch case56 the adjacent property owner sought

an injunction to prevent pumping from a well field in order to

prevent injury to his land. The Court reinstated the property



S56. Koch v. Wick, 87 So.2d 47 (Fla. Sup. Ct., 1956).


-30-









owner complaint and directed the trial court to give the

property owner the opportunity to show that the well field

would, in fact, damage his property. The court indicated that

if the property owner could prove his allegations he would be

entitled to an injunction. In Jupiter's case, the damage and

taking have already occurred so the injunction would serve

little purpose.

In Westphal57 after finding that the City's wells had

damaged the adjacent property, the Court entered a judgment

awarding damages for past injury and held that the City should

be enjoined unless it paid the amount of the permanent damages.

It further provided that upon payment of the permanent damages

the property owner should execute a release to the City of the

right to maintain its pumping stations. The Court pointed

out that under the Court's equity jurisdiction the payment of

the permanent damages would fully compensate the property owner

for his injury, as though the right had been acquired through

condemnation proceedings formally conducted to that end.58

In Canada59 the Court also faced the dilemma of where

private rights to water had been seriously infringed upon, but

it recognized its duty to guard the needs of the municipality.

It concluded that while the inhabitants of the city must have

water, the City if afforded a means for obtaining water through


57. Westphal v. City of New York, 69 NE 369 (N.Y. Ct. of A., 1904).
58. Id. at 370.
59. Canada v. City of Shawnee, 64 P.2d 694 (Okla. Sup. Ct., 1937).


-31-










the statutes and constitution without pauperizing innocent

parties. Acknowledging that invasions of water rights are

generally held subject to injunction and the offending party

was a municipality, having the right to institute eminent

domain proceedings, under its equity powers the Court directed

the trial court to set a reasonable time within which the

municipality must initiate an eminent domain proceeding and,

should the municipality fail to do so, direct that an appro-

priate injunction be entered.

A similar result was reached in the Township of Hatfield

case.60 The Court decreed that an injunction would be imposed

against the Authority for the damages resulting from the

operation of its well field unless certain conditions were met.

The conditions required that any present user or owner of a

well within the influence of the Authority's wells could request

to be connected to the Authority's water line without cost, but

that they would pay for the water consumed.

In Higday the adjoining property owners sought an

injunction to prevent a city's well field from damaging their

property and infringing on their rights to the use of percolating

waters. In remanding the case to the trial court, the Court

stated that the rule of reasonable use would apply and the City

would be answerable to the adjoining property owners for any



60. Township of Hatfield v. Lansdale Mun. Auth., 168 A.2d 333
(Penn. Sup. Ct., 1961).
61. Higday v. Nickolaus, 469 SW2d 859 (Ct. of Appeals, Missouri,
1971)


-32-










S damage from its unreasonable use of groundwater. Further,

the court pointed out that should the trial court adjudge

injunctive relief to be appropriate, it would be in the trial

court's discretion to condition the imposition of the injunc-

tion upon the exercise of the City's power of eminent domain

within a reasonable time to acquire the water rights it has

been violating. Failing that, the adjacent property owners

would still have available a remedy in the nature of inverse

condemnation for any damages caused by the City's unreasonable

use.

Thus it can be concluded that courts have utilized a

wide range of remedies, including injunctive relief, award of

monetary damages and award of damages for inverse condemnation.

The courts have exercised their discretion in arriving at what

they consider to be appropriate remedies depending on the

facts of the particular case. While courts have discretion in

these cases, inverse condemnation is an appropriate remedy when

a municipality deprives the landowner of his right to the

reasonable beneficial use of the shallow aquifer.


-33-









CONCLUSION


The right to the use of water is governed by the

reasonable beneficial use standard. Under this standard each

landowner has the right to an equitable and reasonable

apportionment of the waters in the shallow aquifer. This right

is an interest in real property and each overlying owner's

right is equal and correlative to the rights of all other

owners. If a landowner is deprived of this right by a

governmental entity without due process and full compensation,

he may initiate inverse condemnation proceedings to obtain

full compensation. The reasonable beneficial use standard

also prevents Tequesta from transporting water off the lands

from which it is pumped, if thereby, adjacent properties are

injured.

Accordingly, the certified question of great public

interest must be answered affirmatively.


-34-











SIGNATURE PAGE


Respectfully submitted,

JACOB D. VARN, ESQ.
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
Post Office Box 3239
Tampa, Florida 33601
(813) 223-5366
COUNSEL FOR PASCO COUNTY, S. C.
BEXLEY, JR., L.S.B. CORPORATION,
and ANGELINE CORPORATION

By Q4K:7 C(-7
acob D. Varn

and

JOHN F. WENDEL, ESQ.
WENDEL, BRODERICK & CHRITTON,
Chartered
Post Office Box 5378
Lakeland, Florida 33803
(813) 646-5091
COUNSEL FOR CITRUS COUNTY


uCeobfi." w. e-g I
County Attorney for
Citrus County




*..... I- ,,4..... ..,*_o .- -- .. -





CERTIFICATE OF SERVICE


I HEREBY CERTIFY that a copy of the foregoing Brief

of Amici Curiae, has been furnished by mail to John T. Allen,

Esquire, Special Counsel for Pinellas County; John C. Randolph,

Esquire, of Johnston, Sasser & Randolph, Attorneys for Petiticonrs,

310 Okeechobee Blvd., P.O. Box 48, West Palm Beach, Florida 334C2;

Paul C. Wolfe, Esquire and Marjorie D. Gadarian, Esquire of

Jones, Paine & Foster, P. O. Drawer E, West Palm Beach, Florida -

33402, Attorneys for Respondent; Thomas J. Schw'artz, Esquire,

S Robert Grafton, Esquire,'Stephen A. Walker, Esquire and JVh:, H.

Wheeler, Esquire, P. O. Box V, West Palmr Beach, Florida 23302,

Attorneys for Amicus Curiae South Florida Water Mianagnem.;-

District; Louis de la Parte, Jr., Esquire, 403 North Morcan St.,

Tampa, Florida, Attorney for Amicus Curiae W-est Coast Rec:.ona_

Water Supply Authority; Peeples, Earl & Blank, P.A.,' One BisC=vs

Tower, Suite 3636, Miami, Florida 33131; and John F. Wendsl,

Esquire, Attorney for Citrus County, P. O. Box 5378, Lakeland,

Florida 33803, this 22nd day of November, 1977.



Attorney









-36-