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,
JUPITER INLET CORPORATION,
a Florida corporation,
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
Carlton, Fields, Ward, Emmanuel,
Smith and Cutler, P.A.
Post Office Box 3239
Tampa, Florida 33601
Counsel for Pasco County, S.C. Bexley,
Jr., L.S.B. Corporation, and Angeline
Wendel, Broderick & Chritton,
Post Office Box 5378
Lakeland, Florida 33803
Counsel for Citrus County
STATEMENT OF THE CASE
STATEMENT OF THE FACTS
CERTIFIED QUESTION OF GREAT PUBLIC INTEREST
Point I. -
Point II -
Point III -
Point IV -
THE RIGHT TO WATER IN THE SHALLOW
AQUIFER IS AN INTEREST IN PROPERTY 5
B. Hydrologic Terminology and Background
C. Nature Of Property Rights In Water
D. Reasonable Use Doctrine
E. Reasonable Beneficial Use
ARGUMENT THAT THERE IS NO PRIVATE
PROPERTY RIGHT TO THE USE OF WATER A:D
THAT WATERS OF FLORIDA ARE VESTED IN
ARGUMENTS THAT FLORIDA NOW FOLLOWS
THE PRIOR APPROPRIATION RULE
ARGUMENTS AS TO THE APPROPRIATE
CERTIFICATE OF SERVICE
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)
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)
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)
373.1962 (2) (b)
California, Water Commission Act, Statutes, 1913, p.1012
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
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
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
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?
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
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? -- ---
THE RIGHT TO WATER IN THE SHALLOW
AQUIFER IS AN INTEREST IN PROPERTY.
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
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"
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
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.,
aquifer rises with rainfall and falls with pumpage, vertical
seepage and absorption by the roots that extends into the
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
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).
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
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.,
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,
13. Jarvis v. State Land Dept., 479 P.2d 169, 173 (Ariz. Sup.
14. R. Clark, Water and Water Rights, Vol. 1, 153, 345 (1967).
15. Id., at 355.
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
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,
18. Farnham, Water and Water Rights, Vol. III, 2718, 2719.
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).
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 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
Convey them off the lands from which they are pumped, if
thereby, others whose lands overlie the common supply are
The Michigan Supreme Court perhaps described the
rights of a municipality to the percolating waters as
"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.
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).
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).
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
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.
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
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).
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
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
32. Id, at 26.
33. Katz v. Walkinshaw, 74 P. 766 (Cal. Sup. Ct., 1903).
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.
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
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
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
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.
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
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
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
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
35. Knight v. Grimes, 127 NW2d 708, (S.D., 1964).
L 36. Baeth v. Hoisveeu, 157 NW2d 728 (N.D., 1968).
"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.
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 .
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
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).
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).
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)
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.
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
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.
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-
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
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).
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
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).
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,
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
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.
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
Accordingly, the certified question of great public
interest must be answered affirmatively.
JACOB D. VARN, ESQ.
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
Post Office Box 3239
Tampa, Florida 33601
COUNSEL FOR PASCO COUNTY, S. C.
BEXLEY, JR., L.S.B. CORPORATION,
and ANGELINE CORPORATION
By Q4K:7 C(-7
acob D. Varn
JOHN F. WENDEL, ESQ.
WENDEL, BRODERICK & CHRITTON,
Post Office Box 5378
Lakeland, Florida 33803
COUNSEL FOR CITRUS COUNTY
uCeobfi." w. e-g I
County Attorney for
*..... 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.