Title: Legal Implications of Water Management
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Title: Legal Implications of Water Management
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Legal Implications of Water Management
General Note: Box 12, Folder 1 ( Materials and Reports on Florida's Water Resources - 1945 - 1957 ), Item 15
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I-


Legal Implications of Water Management

by
GEORGE E. OWEN*


In the United States we find two separate and
distinct systems of water rights. One of the systems
is based on what we call the riparian doctrine and
the other is based on what is called the prior appro-
priation doctrine.
From our 17 western states, which are generally
S considered a shortage region, a system of prior ap-
propriation has emerged. This emphasizes exclusive
rights of use for specific quantities, times and places,
subject to the rule of reasonable beneficial use, but
not depending upon ownership of land contiguous to
the water supply. Here there is nearly uniform state-
wide administration of water development and use.
In the eastern 31 states, however, which are gen-
erally considered a water excess region but have also
conditions of shortage, a system of the modified com-
mon law of water rights obtains. This emphasizes
rights of water use in common without regard to
specific quantities, times and places of use, subject
to the rule of reasonable use, but depending in the
first instance upon ownership of land contiguous to
the water supply.
Under the prior appropriation doctrine, which
had its inception in the needs of the early gold miners
for large quantities of water to carry on their opera-
tions, a riparian or other owner could "appropriate"
the right to use as much water as he could successfully
divert and beneficially use, so long as his appropriation
was prior to that of others, in which case his right, on
a sort of first come, first served basis, might in an
extreme case extend to exhausting the flow of the
-stream. This doctrine, as stated above, is used in the
western states and in most cases is confirmed by legis-
lation.
It is on the topic of riparian rights that this paper
concerns itself. In order to do this, however, some
definition of terms must be included. First, what is
a watercourse? (1) The cases reveal that it is not easy
to define a watercourse. For our purposes let us
consider "watercourse" to mean a stream of water
flowing in a definite direction or course, with a chan-
nel, in a bed with banks, having a substantial degree
of permanence and continuity, and all of natural
origin. (2) A "riparian proprietor" is a landowner
whose land is either bounded or crossed by a water-
course. The description of his land must actually

*Assistant Attorney General, State of Florida, Tallahassee.


touch the water in order for him to be a riparian
proprietor. This riparian proprietor has certain legal
rights and privileges in connection with the water-
course which are not common to citizens at large and
which are known as "riparian rights."
The exact origin of our present day law with re-
gard to riparian rights is rather obscure. However,
regardless of its birthplace, the present statement of
the law seems to be followed in most American juris-
dictions, and that is: "Each riparian proprietor is en-
titled to have the watercourse flow by or through his
land in its natural course, quantity and quality, sub-
ject only to reasonable use of other proprietors. He,
in turn, is entitled to make use of the water in the
stream while on his land in any way he sees fit, pro-
vided that he does not by such use unreasonably affect
the rights of an upper or lower riparian proprietor."
The nine common law states in the Southeast seem
to follow this general rule and Florida is included.
The first and leading Florida case which accepted
and discussed this general rule was Tampa Water-
works Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896).
The plaintiff was a corporation which was furnishing
the 8 or 10 thousand inhabitants of Tampa at that
time with water. They owned a parcel of land upon
which an underground stream made a surface ap-
pearance and from there flowed to the Hillsborough
River. This stream was a well-marked and defined
subterranean stream coming from the east and flowing
underneath the ground, 12 or 15 ft. below the surface
and as stated, until it issued out on plaintiff's land
from whence it flowed to the river.
The plaintiff stated in his complaint that he had
owned the land for 17 years; that he had made use
of the stream in its pure state to serve the people
of Tampa with water for their domestic purposes.
That just recently the defendant acquired the lands
just above plaintiff's and proceeded to excavate to the
stream and in a wanton and malicious manner was
polluting the underground stream and diminishing the
flow thereof. That defendant was planning on putting
up bathing pools in said stream, therefore polluting
and diminishing plaintiff's water rights. That de-
fendant should be enjoined because plaintiff needed
the quality and quantity of water as was in the stream
to serve the city of Tampa, which was a growing
community.
In his answer, the defendant alleged ownership of





his lands and denied that he was polluting and di-
minishing the water. He alleged that he was only
making reasonable use of what was his.
Plaintiff was granted a temporary injunction but
upon final hearing, his bill was dismissed and from
that plaintiff appealed.
Chief Justice Mabry in writing the opinion stated
at page 748:
"The mere fact that appellant has a contract with the City
of Tampa to supply its inhabitants with water, and has ex-
pended large sums of money in the erection of a plant, does
not confer any additional rights to the water that passes
through appellee's (defendant's) land (citing cases). There
is also no question presented as to the priority of right grow-
ing out of contract, prescription, or legislative grant."
Previous to this quote, the Chief Justice had
pointed out that the subject of water requires four
classifications which are (1) surface streams which
flow in well-defined channels; (2) surface waters with-
out well-defined channels; (3) subterranean streams
which flow in well-defined channels, and (4) those
which flow without well-defined channels.
At page 785, he went on to say:
"The rule as to well-defined surface streams must be applied
to the stream in question. Appellee has the right to the use
of this water as much as if it ran upon the surface of the
ground. He cannot divert it or pollute it, but he may open
up a water supply on his own land, so as not to interfere with
the legal rights of adjoining owners, and also make a reason-
able application of the water, certainly for domestic purposes.
We discover no reasonable objection to the improvement of
his own property by the removal of the soil in the depression
between the rocks, over the stream, and beautifying the place
by opening an accessible way to the water. The mere opening
of a space, so that the rays of the sun can reach the water be-
low, will not of itself be a contamination or an unreasonable
use of it. It is true that impurities from surface drainage
might get into the stream if unprotected, and thereby pollute
it, but this can be guarded against; and it is the duty of
appellee to prevent the surface water from overflowing into
the opening made by him. There is no sufficient showing that
any serious injury has been done, or will be done with proper
precaution, to the stream by reason of the opening."
Determining that the defendant was not going to
build a swimming pool and was only excavating for
rocks which he sold to construction companies and
that these excavations in themselves did not pollute
or divert the stream, as long as precautions were taken
by defendant, the lower court's ruling was affirmed.
Each riparian proprietor is entitled to make use
of the entire flow of a stream as he may see fit for
the purpose of water power. However, he is not per-
mitted to detain an unreasonable amount of the flow
of a stream for that purpose, nor is he entitled to
place obstructions in the stream which will unreason-
ably reduce the flow. In the case of Price v. High
Schools Mfg. Co., 64 S. E. 87 (Ga. 1909), the upper
riparian proprietor maintained a dam to supply power


r ~ ~_ _~ ~~___~__


to his cotton mill. By means of this dam he cut off
the entire flow of the stream from 6 p.m. each night
until 6 a.m. the next morning. This was held un-
reasonable as applied to a lower riparian proprietor
who operated a grist mill.
Rights in real property cannot ordinarily be taken
from the owner at a valuation, except under the
power of eminent domain. Only when there is some
estoppel or laches on the part of the plaintiff or re-
fusal on his part to consent to acts necessary to re-
moval or abatement which he demands, will an in-
junction ordinarily be refused.
In Whelen v. Union Bag Co. (N.Y. 1913), 208
N.E. 1, 101 N. E. 805, the Court of Appeals of New
York refused to balance the injuries or balance the
equities and enjoined a $1,000,000 pulp mill em-
ploying 500 persons from continuing to pollute a
certain stream. However, in McCann v. Chasm Power
Co. (N.Y. 1914), 211 N.Y. 301, 105 N. E. 416, the
same court refused to reinstate an injunction which
had been suspended by a lower court. The plain-
tiffs and defendant power company owned adjoining
lands in a chasm though which a river flowed, the
land consisted of barren perpendicular rocks and was
practically worthless. The power company erected
a dam across the river to the tune of $97,000. This
dam raised the water so that it was set back on plain-
tiffs' barren rocks. This was a continuous trespass and
the plaintiffs sought to enjoin it in equity. It so
happened that several of the plaintiffs owned stock
in the defendant power company during the time
the dam was under construction and knew all about
the operation. The court refused to grant the in-
junction, while recognizing the general rule that a
court of equity will compel the trespasser to undo as
far as possible what he has wrongfully done; said the
rule was not rigid and in this case the plaintiffs have
no equities and no larger or other claim than that
an invasion of a technical or profitless legal right
should be corrected. See also Smith v. Staso Milling
Co. (1927), 18 F. 2d 736, and the well-reasoned opin-
ion by Justice Learned Hand relating to actions to
enjoin a mining company in the state of Vermont
from polluting a brook or stream with slate dust, from
polluting the air with the dust and from jarring the
plaintiffs dwelling house by blasting.

The Doctrine of Laches
In City of New York v. Pine (1902), 185 U. S. 93,
22 S. Ct. 592, 46 L. Ed 820, the city of New York
needed additional water supplies, got authority from
the state legislature to establish a head of water in
the Catskill Mountains with basins in Westchester
County. In the course of this process the water level









'*as lowered, thus affecting lands not only in New
York, but also in the adjoining state of Connecticut.
PlaintiilT property in Connecticut suffered and they
ght an injunction. The injunction was granted in
Slower court and New York City appealed.
The United States Supreme Court recognized that
bthe plaintiffs would suffer substantial damage by the
proposed diversion of the water from their lands. It
,also recognized that although the dam and sources of
water abote it were actually in New York State, it had
no power to appropriate such water or prevent its
-natural flow through its accustomed channel into the
state of Connecticut; that the plaintiffs have a legal
right to the natural flow of the water through their
farms in the state of Connecticut and cannot be de-
prived ot that right by and for the benefit of the
SciL of New York by any legal proceedings either in
Connetiitut or New York; and that a court of equity,
at the instance of the plaintiffs, at the inception and
befoite iyn- action had been taken by the city of New
)'oik. would have restrained all interference with such
Natural ilow of the water. The court pointed out
hosweer that the plaintiffs' infringed property right
could be measured in a relatively small amount of
Smone. that the water supply to New York City would
affect man\ people; that the plaintiffs had stood by
for to \ears and watch the defendant construct the
* dam at great expense and now at the eleventh hour
Some in and ask for an injunction. The Supreme
Court reversed the Circuit Court of Appeals and
the Circuit Court and denied the injunction, thus ap-
pling the doctrine of laches.
Oti court in National Container Corporation v.
State, 138 Fla. 32, 189 So. 4, on the question of con-
tanilnation of water, said:
"It iI a natter of fact, it is a necessary part of the operation
not iuth pulp and kraft paper mill at its particular location
to discharge enormous quantities of waste and refuse matter
into the liver which will be highly toxic to fish and other
Inrinl ol marine and aquatic life and which will be highly
o\t v'., aquatic plant life upon which the fish are accus-
tnined it teed and the result will be that the supply of fish in
the rier ill be seriously reduced, if not entirely cut off, and
the pIr.fiiable commercial business which now exists in the
caithing and marketing of such fish will be seriously and
perinantnily damaged and the facilities for pleasure and
recieation1 will be thereby diminished and damaged, we think
that it requires no citation of authority to support the as-
.ertriin that the state may enjoin the consummation of the
damage %rhich is threatened even before the damaging con-
dition ltones into being."
Todal the concept that the court has a discre-
ttonarl power to balance the equities when determin-
ing whether to grant the injunction is again coming
into its own, especially in the southeastern states.
As %et thle injunction has not been widely used in


the Southeast for the protection of rights in sub-
terranean water supplies, though the conservation of
such supplies is becoming a real problem, but it has
been sought in many cases to prevent pollution of
surface waters.
In the pollution cases public interest often looms
big since the offenders are usually municipalities or
large industries intimately tied in with the economy
of the community; and in cases of this sort we should
not be too surprised to find the courts refusing to
grant an injunction, the result of which would be to
shut down an important industry or leave a city with-
out means of sewage disposal. The fact that a mu-
nicipality, if enjoined, might obtain a right to con-
tinue its pollution through eminent domain pro-
ceedings is of course a factor in some of the decisions
to balance the equities; but even in the case of private
parties, if the public interest in continued operation
is strong enough the injunction has usually been de-
nied. Thus we find the Alabama Supreme Court in
a 1952 case refusing to sanction injunctive relief against
pollution by a limestone company on a complaint of
interference by agricultural interests (Montgomery
Limestone Co. v. Bearden, 54 So. 2d 571); and a 1940
Florida case balancing the equities in favor of al-
lowing a municipality to continue polluting a stream
through operation of a sewage disposal plant (City of
Lakeland v. State, 143 F. A. 761, 197 So. 470). How-
ever, the court in this case did order the city of Lake-
land to take all feasible measures to cut down the
amount of the pollution.
The definition of the balance of equities doctrine
was best set forth in Harrisonville v. U. S., Dickey Clay
Mfg. Co., 289 U. S. 334, 53 S. Ct. 02, 77 L. ed 1208
(1933) where Mr. Justice Brandeis stated at page 337:
"For an injunction is not a remedy which issues as of course.
Where substantial redress can be afforded by the payment of
money and issuance of an injunction would subject the de-
fendant to grossly disproportionate hardship, equitable relief
may be denied although the nuisance is indisputable."
In the Harrisonville case the court held that an
injunction would not issue against the discharge of an
offensive effluent from a municipal sewage disposal
plant into a creek flowing through complainant's
farm, where the further treatment of the sewage would
require a considerable expenditure for an auxiliary
plant, the annual interest on the cost of which would
be many times the annual loss resulting to the farmer
from the nuisance, and relief could be had in money
damages.

Does This Business Ever Work in Reverse?
A few years ago over in West Florida (Washington
County), a Mr. J. V. Tharpe owned a water mill on










Hard Labor Creek which he and his predecessors in
title had been operating as a saw mill, grist mill, or
shingle mill for more than 70 years. It was propelled
by water impounded in a mill pond by erecting a dam
across the creek to the east of the mill.
When the water left the millrace, it flowed through
a swamp area in five channels. Along came progress.
At a point four or five hundred feet west of the mill
the State Road Department erected a bridge and fill
aggregating 640 ft. in length. The fill completely ob-
structed four of the channels, the result being to
raise the elevation of water in the millrace at least
3 ft., reducing the capacity of the mill 50 per cent.
Mr. Tharpe asked for an injunction against the
State Road Department, alleging that this was taking
his property without due process of law and that he
was prohibited from recovering damages in a suit at
law from the State Road Department.
The Road Department claimed that this was a
suit against the state of Florida and that such could
not be maintained without the consent of the state.
Our Court held in State Road Department of Fla.
v. Tharpe, 146 Fla. 745, 1 So. 2d 868, that this was
not a suit against the state, but even if it were, the
damage done constituted an implied contract to pay
and was covered by a 1931 statute, authorizing suits on
contracts against the State Road Department. In so
holding the court said:
"Here we have a case in which complainant's millrace was
flooded and the efficiency of his water mill reduced 50 per cent
by the act of a state agency. The millrace with the water from
the millpond is to the water mill what the dynamo is to the
machine driven by electricity or the engine is to the machine
driven by steam. It is the power that drives the water mill
and it is property protected by the Bill of Rights. True it
is a species of property like the horse and buggy, gradually
approaching extinction but so long as, as in this case, it
affords subsistence for man and beast, it must be protected."

A Look at the Florida Situation
First, let us consider the Florida situation with
reference to riparian rights. Section 192.61 defines
riparian rights as follows:
"Riparian rights are those incident to land bordering upon
navigable waters. They are rights of ingress, egress, boating,
bathing and fishing and such others as may be or have been
defined by law. Such rights are not of a proprietary nature.
They are rights inuring to the owner of the riparian land but
are not owned by him. They are appurtenant to and are in-
separable from the riparian land. The land to which the
owner holds title must extend to the ordinary high-water
mark of the navigable water in order that riparian rights
may attach. Conveyance of title to or lease of the riparian
land entitles the grantee to the riparian rights running there-
with whether or not mentioned in the deed or lease of the
upland."


- ---


This statute insofar as water rights are concerned
goes along with the generally accepted rule heretofore
discussed in this paper, but in the case of land bottoms
the Supreme Court of Florida in the case of Trustees
of the Internal Improvement Fund of Florida v.
Claughton et al., opinion filed January 7, 1955, held
that riparian rights do not attach to so-called tidal
lands or submerged tidal sand bars, shallow banks or
lands artificially raised above water. In other words,
the court held that you could not take a one acre
tidal island and make a five acre island out of it by
adding fillings.
In Duval Engineering and Contracting Co. v. Sales,
opinion filed December 5, 1954, our court held that
Section 253.12, Florida Statutes, repealed Section
271.01, Florida Statutes. The latter authorized ripar-
ian owners to bulkhead and fill from the shore or.
beach, so long as such filling does not obstruct the
channel. Such cannot be done any longer under this
opinion.

The Broad Picture
Florida, due to its geographical situation has long
been concerned with water conservation and flood
control. It has enacted many general and special laws
relating to this subject.
Chapter 157, Florida Statutes, provides for the es-
tablishment of public drainage districts by the various
counties, and our court held in the case of Wilton v.
St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488,
that this act, whether it be strictly speaking for a
county purpose or not, confers upon county com-
missioners the power of eminent domain for condem-
nation of land necessary for construction of any drain-
age ditch or canal authorized by the board.
For General Drainage the Legislature enacted
Chapter 298, Florida Statutes, in 1913 and amended
this law considerably in 1945. This act allows a ma-
jority of the owners of acreage contiguous to a body
of wet or overloaded lands located in one of our coun-
ties to formally petition the circuit court to form a
drainage district to have these lands reclaimed and
protected.
Chapter 378, Florida Statutes, is the general flood
control statute which was enacted in 1949 by Chapter
25209 creating the Central and Southern Florida Flood
Control District and providing that districts could be
established by petitioning the various circuit courts.
Apparently the legislature at the same session felt
that water conservation and effective land use was of
such tremendous importance that they more or less
by-passed Chapter 25209, which is now Chapter 378,
Florida Statutes, by enacting another law, Chapter







T


25270, Acts of 1949, wherein it created the Central
and Southern Florida Flood Control District, defined
its boundaries, imposed taxes on all property in the
district, abolished the Okeechobee Flood Control Dis-
trict and provided for other functions.
This famous multimillion dollar project in Florida
is operated by both state and Federal funds. It covers
a vast territory of the state of Florida, extending over
almost the entire southern peninsula from the north-
ern boundary of Brevard County to Card Sound in
Dade County.
The purpose of this tremendous project is to re-
claim land and conserve water and to protect land and
other property and the inhabitants of the area from
the effect of water resulting from either a surplus or
deficiency, or both, and for sanitary and agricultural
purposes. The long time approach of this project will
be not only to aid agricultural development, but it
looks to the day when large cities like Miami, Fort
Lauderdale and West Palm Beach will need water
supplies from places other than their present source,
and to establishing sources for such cities if their
present sources should fail.

Recent Cases Relating to Water of General Interest
In the case of Mull v. Roosevelt Irrigation District,
Arizona, 272 P. 2d 342, the Arizona Supreme Court
refused to extend the hidden pitfall theory of liability
of a landowner to cover the danger of being sucked
into an irrigation pipe. A minor girl went upon the
irrigation district's land as a gratuitous licensee.
While she was sitting on the pipe dangling her feet
in the water as it was ejected, the electrical power
failed or was cut off. This caused the water in the
pipe to reverse its flow and the girl was sucked into
the pipe. Her suit for injuries thus sustained was
based upon the district's failure to give warning of
such danger or to take protective measures. To suc-
ceed it was necessary for her to show that such danger
constituted a hidden pitfall. The court said that the
reverse flow of the water was the ordinary reaction in
case of a power failure and was a natural incident
to the lawful activity of pumping irrigation water.
The court stated the controlling principle to be that
there was no obligation on the district's part to pro-
vide the girl, as a gratuitous licensee, with a safe recre-
ational area, and hence there was no obligation to
warn her of the possible failure of power and the re-
sulting effect.


In the case of Elder v. Delcour, Mo., 269 S. W. 2d
17, it appears that the Meramec River in Missouri has
long been known for its excellent fishing. The abun-
dance and size of its fish have not been greater ap-
preciated by anyone than by a certain farmer who
sought to retain exclusive .fishing rights at a point
where the river crossed his farm. An ardent fisherman
decided to float down the stream and fish on his way
even through the territory of the farmer's property.
The fisherman was not deterred either by the barriers
erected by the farmer or by the farmer's threat of a
law suit. He boldly announced to the farmer his in-
tention to cross the farm by way of the stream and
to take fish while on his journey. He also told him that
he was going to wade up and down the stream at
that point and fish at all likely spots and if any of
the barriers erected by the farmer proved insurmount-
able he was going to carry his craft along the bank
until he reached the other side of the barrier. This
fisherman's courage and determination have opened
the river to all fishermen. The Supreme Court of
Missouri applying the federal rule as to navigability
agreed with the farmer that the river was non-navi-
gable and that title to its bed was in the farmer, but
said that the bed was however a public highway for
travel by floating or wading and that, the title to un-
captured fish in the river was in the state and since the
fisherman was not a trespasser by floating down the
river, he had a right to take such fish as he could
lawfully capture.
The Appellate Court of Missouri in the case of
Burgess v. Kansas City, 259 S. W. 2d 702, held that
a party who had obtained a final judgment for personal
injuries against the city of Kansas City would be pre-
cluded from successfully levying execution against the
city waterworks plant or the receipts therefrom.
The court pointed out that the overwhelming
weight of authority is that property which is owned,
controlled and operated by a county or municipality
in its governmental capacity, is not subject to execu-
tion by a judgment creditor, but that the question
which gives the courts the greatest concern is whether
the property and funds arising from the operation of
a public utility, such as waterworks, which is owned
by a municipality, are subject to execution.
Concluding that Kansas City owned and operated
its waterworks in a proprietary capacity, the court held
that it did so for public purposes only and that for
that reason neither the plant nor the receipts there-
from are subject to execution.




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