Title: Memo: Definition of Reasonable Beneficial Use
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 Material Information
Title: Memo: Definition of Reasonable Beneficial Use
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memo: Definition of Reasonable Beneficial Use, To: Myron Gibbons, From: Joseph Clark, July 12, 1972
General Note: Box 10, Folder 12 ( SF Water Rights-Water Crop - 1973, 1976-77 ), Item 48
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002284
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






MEMORANDUM


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

be considered:

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,
at 19-20).

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.


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