Title: Analytical Table of Contents of the Preliminary Report of the Committee on Water Law of the Florida Water Resources Study Commission
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 Material Information
Title: Analytical Table of Contents of the Preliminary Report of the Committee on Water Law of the Florida Water Resources Study Commission
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Language: English
Publisher: Florida Water Resources Study Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Analytical Table of Contents of the Preliminary Report of the Committee on Water Law of the Florida Water Resources Study Commission
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002944
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

















TABL ~ OF CONTENTS


CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER


I.

III.

III.

IV.

V.

VI.

VII.

VIII.


CHAPTER IX.


ANALYTICAL TABLE OF CONTENTS

INTRODUCTION

LAW OF STREAMS AND WATERCOURSES------------------

MAN MADE CHANNELS-------------------------------

LAKES AND PONDS----------------------------------

DIFFUSED SURFACE WATERS---------------------------

GROUND WATER-----------------------------------

TECHNIQUES OF ACQUIRING WATER RIGHTS-------------

LEGAL REMEDIES--------------------------------

INTERRELATIONSHIPS BETWEEN WATER IN DIFFERENT
CATEGORIES---------------------------------

CONCLUSIONS AND RECOMMENDATION-------------------


Page
ii

5a

5a

34

38

45

51

58

69



84

88










COPY NO.


FOR REVIEW ONLY- NOT FOR RELEASE












Preliminary Report of the

Committee on Water Law

of the

FLORIDA WATER RESOURCES STUDY COMMISSION


September, 1956


Committee members:


Frank E. Maloney, Chairman
Stojan A. Bayitch
Richard H. Hunt
George E. Owen
Robert D. Tylander
Winston E. Arnow


The Florida Bar
The Florida Bar
The Florida Bar
The Florida Bar
The Florida Bar
The Florida Bar


I












ANALYTICAL TABLE OF CONTENTS


Page
INTRODUCTION------------------------------------------- 1-5

SCHEME OF ANALYSIS--------------------------------------------- 3

CHAPTER I. LAW OF STREAMS AND WATERCOURSES 5a-34

General Considerations 5a
A. Definition of Natural Watercourses------------------ 7
B. Definition of Riparian Land------------------------- 9
Ownership of Land Between High Water Mark and Channel- 11
C. Extent of Right to Use Water from Streams and Water-
courses- --------------------------------- 12
Balance of Convenience Doctrine------------------------ 15
Use of Flood Water--------------------------------- 16
Priorities Among Users------------------------------- 17

Governmental Powers Over Right of Use
Navigability------------------------------------------ 18
State Law-------------------------------------- 18
Federal Law------------------- -------------------- 21
Interstate Disputes------------------------------- 24
Effect on Private Rights--------------------------- 24
Other Governmental Powers----------------------------- 25
Flood Control--------------------------------- 26
Drainage Legislation----------------------------- 27

Pollu~jtg of Streams and Watercourses 29
Common Law Remedies-------------------------------- 30
Remedies by State Authorities----------------------------- 31
Federal Actioni---------------------------------- 33a



CHAPTER II. MAN MADE CHANNELS 34-38

General--------------------------------- 34
Drainage District Canals-------------------------------- 35
Drainage into Navigable Waters--------------------------- 35
Pollution--------------------------------------------- 36
Legislative Authorization for Construction----------------- 36









Page

CHAPTER III. LAKES AND PONDS 38-44

Definition------------------------------------------38
Ownership of Bottom--------------------------------- 38
Effect of Navigability--------------------------- 39
Use of Water from Lakes and Ponds------------------------ 40
Flood Waters----------------------------- ----- 41
Non-consumptive Uses------------------------------ 42
Pollution------------------------------------------- 43


CHAPTER IV. DIFFUSED SURFACE WATERS 45-50

Definition------------------------------ 45
Use of Diffused Surface Waters--------------------------- 45
Disposal of Diffused Surface Waters---------------------- 45-48
Common Law Rules Concerning Disposal---------------- 45
Drainage into Drainways and Watercourses------------- 47
Legislation Concerning Diffused Surface Water------------ 48-50
State Legislation------------------------- 48
Federal Legislation----------------------- --- 49


CHAPTER V. GROUND WATERS 51-57

General---- ------------------------------------- 51
Underground Streams--------------------------------- 51
Artesian Waters---------------------------------- 52
Springs--------------------------------- 53
Percolating Waters---------------------------------- 54
Pollution------------------------------- 56
Salt Water Intrusion----------------------------- -- 57


CHAPTER VI. TECHNIQUES OF ACQUIRING WATER RIGHTS 58-69

Grant or Assignment----------------------------- 58
Prescription---------------------------------------- 60
Condemnation----------------------------- 65


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I II _____











Page


CHAPTER VII. LEGAL REMEDIES 69-84

Injunctive Relief 69-77
Discretionary Powers of the Court------------------ 70
Balance of Convenience Doctrine--------------------------- 71
Laches----------------------------------------------- 72
Clean Hands and Other Defenses---------------------------- 72
Conditional Injunctions-------------------------- --- 73
Constitutional or Legislative Authorization as a Defense
to Nuisance Actions-------------------------------- 74
Substitutional Damages in Equity--------- ------------ 76

Damages Actions 77-80
Permanent or Capital Damages----------------------------- 77
Measure to Non-using Riparian Owner----------------------- 79
Joinder of Tortfeasors--------------------------- --- 80

Declaratory Judgements and Decrees 80-84
1943 Declaratory Judgement Act--------------------------- 81
Existing Case Law----------------------------- 82
Future Usefulness------------------------------ 83



CHAPTER VIII. INTERRELATIONSHIPS BETWEEN WATER IN DIFFERENT CATEGORIES 84-88

Common Law Categories of Water--------------------------- 84
Physical Interrelationship of These Categories----------- 85
Legislature Development----------------------------- 86


CHAPTER IX. CONCLUSIONS AND RECOMMENDATIONS 88-99

Riparian or Appropriation Approach-------------------------89
Evaluation of Prior Appropriation System------------ 89
Constitutional Difficulties in Switch to Appropriation 91
Lessons from Western Law--------------------------- 92
Major Problems in Florida------------------------------ 92-93
Gaps and Problem Areas in Florida Law------ ---------- 94
Need for Multipurpose Districts--------------------------- 95
Need for State Agency--------------------------------- 96
Recommendations-------------------------------------- 97-99


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INTRO DUCTI ON


The State of Florida has been blessed with an abundance of one of this nation's

most important natural resources, water. Her water supplies probably equal or exceed
the
those in any other area of equal size on the American Continent. But as/population of

Florida has rapidly increased and as its agricultural and industrial potential has begun

to be developed, it has become evident that wise management of this important natural re-

source is essential for the welfare of the state. The severe drought of the past two

years has shown the need for wisdom in the management of this resource. Aware of the need

for an overall evaluation of the water resources of Florida, the 1955 Florida Legislature

enacted Chapter 29748, Laws of Florida, 1955 creating the Florida Water Resources Study

Commission to study the water resources of Florida and determine whether or not there is

need for a comprehensive water law in the state administered by a board and whether there

is need to create a state administrative agency to administer such a comprehensive law.

Studies of Florida's water resources have been conducted in the past but with

one exception there has never been any attempt to make an overall study of the existing

water law in Florida or any evaluation of the extent to which that law maximizes or im-
1
pedes the most beneficial use of this important natural resource. The Water Resources

Study Commission, recognizing the need for such a study of Florida's existing water law,

invited the Florida Bar to cooperate in its work and to undertake for the Commission a

study of the existing law of Florida in the field of water resources management as well

as to aid the Commission in the drafting of any legislation determined to be necessary

at the conclusion of its study.

On March 26, 1956, the Florida Bar established, under its Committee on Con-

tinuing Law Reform, a subcommittee on water resources to work with the Florida Water Re-

sources Study Commission for the accomplishment of these purposes. The Water Resources

Study Commission agreed to make funds available for the employment of research assistants

at the College of Law, University of Florida, under the supervision of Professor Frank E.

Maloney who was appointed Chairman of the Florida Bar Subcommittee. That committee deter-

mined that its work would be accomplished in three stages. In order to determine the
1 -








presently existing law in the field, the first stage would be a thorough investigation

of the case and statute law of Florida, and the Federal law which affects Florida's water

resources. The second stage of the program would consist in comparing the results of this

study of the existing law with the needs indicated by the Commission's study of the water

problems of the state to determine how well the existing law is geared to meet these pro-

blems and needs, and what gaps and defects exist in the present legal picture. The third

stage of the work of the subcommittee will be the drafting of remedial legislation for

the Commission. This report covers the first two stages of the work of the Bar committee.

A study of the water law of any American Jurisdiction must take into account the

fact that water resources law in the United States has developed along two different,

often diametrically opposed, lines. The system which developed in those states east of

the Mississippi River, sometimes referred to as the riparian system, was adopted from the

common law of England as it developed in relation to surface watercourses. This law as

originally developed is still followed in some Eastern jurisdictions. In these states

the lower riparian owner is entitled to substantially the full flow of a watercourse

on which he has riparian rights. This in turn means that an upper riparian owner may

not alter the natural flow of such a watercourse except to make use of the water for

purely domestic purposes.

The natural flow doctrine was adopted in England when the use of water for in-

dustry and irrigation was very minor and the predominant problem was the prevention of

pollution. It has been modified in many Eastern jurisdictions by what is known as the
this
"reasonable use doctrine." Under/modification, a lower riparian owner is entitled to

protection only when diversion by an upper riparian owner unreasonably interferes with

the complainant's use of the water. This permits full use of the available water supply,

allowing each riparian owner to make beneficial use of the water for any purpose to the
2
extent that his use does not unreasonably interfere with the beneficial uses of others.

A different system of water rights law developed in the West. Western law

had its inception in the needs of the early gold miners for large quantities of water

to carry on their operations. Such supplies were first "appropriated" at gun point,3


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_____~____~ _








and later the developing law of the West granted judicial recognition of such appropri-

ations. Under this doctrine riparian ownership is not essential to the right to make

withdrawal. A riparian or other owner can appropriate the right to use as much water

as he can successfully divert and beneficially employ so long as his appropriation is

prior to that of others--in which case his right, on a sort of "first come, first served

basis," may extend in an extreme case to the complete appropriation of the available

supply.

These judicially promulgated doctrines have been modified to a greater or lesser

extent by legislation, both in the East and in the West, but they have influenced and

indeed controlled the direction of such legislation. One of the possibilities which must

be considered by Florida's '~ater Resources Study Commission will be the advisability of

recommending a switch from the riparian doctrine as it now operates in Florida to some

modification of the prior appropriation doctrine used in the West. An evaluation of the

benefits and detriments to be expected from such a radical change will be made in the

conclusion of this report.

SCHEME OF ANALYSIS


Basically Florida falls into the classification of a riparian (as contrasted

with a prior appropriation) state. It does not follow, however, that the same legal

rules will apply to different types of water in the state. The water resources of Florida

are therefore divided for the purposes of this study into three broad categories:

(1) Surface water in well defined streams and watercourses; (2) surface water which

spreads in a diffused state after falling as rain or rising from springs, usually referred

to as "diffused surface water"; and (3) underground water supplies, usually referred

to as "ground waters". Different rules of law have developed in each of these three

categories concerning the right to withdraw and use the water.

Within the broad category of surface water in streams and watercourses, analysis

of the legal problems arising in connection with three different types of such water will

be considered--first, water in well defined streams; second, water in man-made channels;


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__













and third, water in lakes, ponds and sink holes. The right to

use and divert the water in each of these three types of sur-

face water media is considered in detail in the first three

chapters of this report.

Diffused surface water creates one of the major problem

areas for agricultural use. Problems of drainage or dis-

position of this type of water as well as availability for

use are considered in chapter four of the report.

The analysis of ground water problems will be sub-divided

into a consideration of such water in a percolating state and

second, underground water in well defined streams. In general,

where the existence of an underground stream can be proven, the

rules applicable to surface streams are applied. The major

groundwater problems, however, arise in connection with

percolating water. They are the subject of chapter five of the

report.

The committee has also attempted to evaluate the techniques

for acquiring water rights in Florida including an analysis of

the assignability of such rights and the availability of pres-

cription and condemnation proceedingsas a means of acquiring them.

This material is covered in chapter six.

Chapter seven deals with the legal remedies available for the

enforcement of water rights in Florida, including the injunction,

the action for damages,and the declaratory judgement, and an

attempt is made to evaluate the effectiveness of these remedies.





It is recognized that, from an.engineering viewpoint, it is often

unreasonable to consider the water in one of the above mentioned

categories without taking into account its relationship to water in

other categories. Water passing through what is known as the hydrologicc

cycle" often passes through all of the various stages beginning as

atmospheric water which falls to earth as diffused surface water, runs

into surface watercourses, is stored in lakes and ponds, percolates

from these storage spaces into the ground water supply, slowly moves

into the ocean and becomes tidal water. Finally, evaporation from the

ocean will begin the cycle again. An important phase of this study,

therefore, is an attempt to determine to what extent the laws of Florida

recognize the inter-relationship between'these different categories

of water, and to evaluate the need for further recognition of such

inter-relationships. This material is covered in chapter eight.

The solution of many of the water problems of any state, whether

it be one which is governed by riparian or by prior appropriation laws,

lies in the field of group action by political entities created for

the purpose of resolving a particular water use or control problem..

Such entities can raise financial resources through taxation apportioned

to the benefits received by the individual units composing the entity.

Many of Florida's drainage and irrigation problems have been unravelled

through the creation of such units. An evaluation of the success of this

approach, both through water control districts of various types, and

through other types of group action, including action by counties and

municipalities, is badly needed. Time limitations prevented a detailed

study of this phase of Florida water law by this committee, but such a

study, including a field study of how these laws work out in practice

in the various districts, should be undertaken as soon as possible.

Finally, a summary of the major legal problem areas in Florida has

been presented in chapter nine along with recommendations for the

solution of these problems.
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