July 12, 1972
TO: Myron Gibbons
FROM: Joseph Clark
RE: Definition of Reasonable Beneficial Use
The case of Cason vs. Florida Power Company, 74 Fla. I.
76 So 535 (1917), marked the birth of the "reasonable use" rule
in Florida. The Court stated:
"The reasonableness of the use of property (water)
by its owner must of necessity be determined from
the facts and circumstances of particular cases as
they arise, by application of appropriate provisions
for principles of law and the dictates of mutual or
reciprocal justice." Id. at 536.
The "reasonable use" rule has been interpreted by the Florida Courts
as meaning that an owner has a right to make a reasonable use of
water subject to the equal rights of others to make a reasonable
use. Koch vs. Wick, 87 So 2d 47 (Fla. 1956) (right to draw water
from well, bounded by reasonableness), Tampa Water Works Company
vs. Kline, 37 Fla. 586, 20 So 780 (1896) (pollution of water in an
underground stream held unreasonable use).
Thus, on its face, a man might use as much water as he
pleases, subject only to the limitation he not use all the water
and thus deprive other riparians of the uses they were making.
Maloney, Water Law and Administration, at 156
This interpretation has been adopted in the past by many
eastern states and has been criticized in that while such a standard
was helpful to other riparian owners, it did little to protect
the general public.
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It may be argued however, that such a criticism is not
valid when applied to the Florida Courts. The gloss which the
Courts have placed on the rule is essentially that the right to
use water is "bounded by reasonableness and beneficial use of the
land." Labruzzo vs. Atlantic Dredging and Construction Company,
54 So 2d 673 (1951) (underground streams), Taylor vs. Tampa Coal
Company 46 So 2d 392 (1950) (unreasonable appropriation of water
from a lake held that the use of land for pleasure, constitutes
a use sufficient to allow a remedy for an unlawful interference
with its natural condition). Additionally, several articles which
have discussed the use of water suggest that the following factors
1. The value of the use does it advance the public good?
2. The suitability of the use to the particular water
course and to the customs and usages with respect to
it. U. Miami L Rev. 702.
Thus, concern has been shown for the nature of the use, as
well as the quantity of water devoted to a particular use.
The "beneficial use" rule, is one which is dominant pri-
marily in the western states. The rule holds that a user "who
diverts a quantity of water greater than is needed, and allows
the excess to go to waste, acquires no rights in the excess."
Manual of Resource Management, Chapter 378, at 19. Here, there is
concern for water, but no concrete requirement of reasonableness.
Chapter 72-299, Laws of Florida, is an attempt to combine
the best features of both rules. Under the "reasonable beneficial"
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use rule, water must be used "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"
Ch 72-299, Part I, Section 3, subsection (5) at 3. Thus, the
quantity of water used must be efficient with repsect to the use
itself; water is regarded as a raw material.
("Thus, if a particular crop can be grown with 5
acre-feet of water per year, it would be wasteful
to use 10-acre-feet, since no increase in value is
obtained from the increased use of water. On the
other hand, if it is technically feasible to use
5,000 gallons per day in an operation, but total costs
can be reduced substantially by the use of 10,000
gallons per day, the reduction in overall costs
may justify the increased use. It should be noted
that this part of the reasonable beneficial use
test allows only that quantity of water to be used
as is necessary for economically efficient opera-
tion. The value of the use itself in relation to
other uses is not considered initially." Manual,
It is stated that although this type of limitation could have been
imposed at common law, it was done so only when other riparians
were injured as a result of a particular use. Manual, supra.
In sum, under the "reasonable beneficial use" rule, the
manner of diversion must be reasonable and consistent with the
public interest; the use need not be the most economical use
possible, but it must not be detrimental to other users, nor
inconsistent with the character of the water course from which
the quantity is taken. Id. at 19.20. The use, in general, must
be consistent with the public interest.
Thus, in light of past Florida decisions, the new standard
cannot be considered totally new. Rather, it seems to be more of
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a clear articulation and embodiment of ideas which have surfaced
in those decisions.
The Florida Courts should be able to apply the new rule
without much difficulty.