Title: Man Made Channels
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Permanent Link: http://ufdc.ufl.edu/WL00002946/00001
 Material Information
Title: Man Made Channels
Physical Description: Book
Language: English
Publisher: Florida Water Resources Study Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Man Made Channels
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002946
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







state acting in a quasi-soverign capacity, and granted a mandatory injunction against

the offending industries, commanding them to take corrective measures. Individual

citizens of Georgia had previously been denied the same injunctive relief in the

Tennessee courts on the basis of the balance of convenience doctrine.4

Prevention of another type of pollution, that due to salt water intrusion, has

also received some congressional attention.185 This is an acute problem in some areas

of Florida where the erection of salt water barriers in navigable streams is necessary

for the protection of municipal water supplies. As a matter of law, the consent of

the federal government may be necessary before such barriers are constructed,l86

though doubtless this consent can readily be obtained.




II. MAN MADE CHANNELS


A discussion of the present state of the law regarding water in man made

channels should begin on a note of caution. The man made channel may have become a

natural watercourse in the eyes of the law. This happens when the channel has been

constructed with the intention of using it permanently and it has been used consistently

with this intent for a considerable period of time.18 While no Florida case law

squarely on this point has been found, the possibility that an old canal may be held
188
to have become a natural watercourse should not be minimized.

Water in artificial channels is not ordinarily subject to the usual rights of

a riparian owner.189 In defining the riparian rights incident to land bordering upon

navigable waters ingress, egress, boating, bathing and fishing the Florida Legis-

lature does not mention the distinction between artificial channels and natural water-

courses.190 Although the language of the statute is broad enough to encompass both,

the general rule of strict statutory construction would probably limit the application
of the statute to natural waercourses alone191
of the statute to natural watercourses alone.


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The provision made for the use of drainage district canals for irrigation as

well as drainage 92does not seem to address itself to the use of water from the canals

so much as to the use of the canals themselves to lead water into,as well as out of, the

districts. Florida lands submerged by non-navigable waters are subject to private owner-

ship, and if as a result of dredging the waters are rendered navigable, the submerged

land and the waters seem to remain private property, at least so far as fishing rights

are concerned.193 A recent opinion of the Attorney General concerning control of waters

and water bottoms created artificially by the Inter-American Center Authority seems to

reinforce this position.194 The rights of the abutting owner in this case should not,

however, be characterized as riparian since they did not arise from ownership of property

bounded or traversed by navigable waters. Whether such an owner might apply the water

to natural or artificial uses seems not to have been settled in Florida.
so
As to water in canals and.ditched.owned and maintained by a flood control district

the Florida legislature has expressly given to such district the power to regulate both

discharge into and withdrawal from the waterways.195 This is in accord with the usual

treatment of canal waters. It should be noted that no limitations have been imposed on

the exercise of the aforementioned power by the flood control district with the result

that there appears to be no legal objection to use of the water from such canals outside

the watershed of the canals.

The use of water from man made channels and canals draining into navigable

waters, or accumulating water which would otherwise drain naturally into navigable waters

would seem to be permitted so long as the use did not interfere with the navigability of

the latter.196 A use which would destroy the navigable character of the waters supplied

by these canals would have to yield to the paramount power of the United States to con-

trol them for the purpose of navigation where such authority exists.197 As in the case

of natural watercourses the interest of the federal government in canals and man made

channels may also be asserted through the Soil Conservation Service of the Department of

Agriculture acting to prevent run-off and soil erosion on watersheds pursuant to the

Flood Control Acts of 1936,198 1938199 and 1944.200

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No federal pollution control measures particularly directed toward control of

pollution in canals or man made channels have been found. As discussed elsewhere in this

report, until relatively recent years, the federal regulation of depositing waste in waters

has been directed at such deposits as would interfere with navigation. This regulation

would seem to extend to canals feeding navigable waterways since the prohibition on

deposits extends to any "tributary" from which the refuse matter may be washed into a
201 202
navigable water. The 1948 Waater Pollution Control Act, which is aimed at pollution

in the usual sense,would seem to be couched in terms broad enough to include man made

canals and channels although such waterways are not mentioned by name in the Act. The

statutory law of Florida, like the federal law, does not single out waters in canals for

special treatment. Unlike the federal pollution act, however, the Florida Pollution of

Jaters Act203 includes ;ditches" and "streams- as distinguished from "rivers" in the list

of waters in which the deposit of poisonous or deleterious substances is made a mis-

demeanor. The County Water System and Sanitary Sewer Financing Act204 passed by the 1955

Legislature may provide an indication of the policy favored by that body as to regulation

of discharge of waste by industrial and manufacturing plants in that the Act gives no

authority for the institution of proceedings to stay the discharge of waste by such plants

into either navigable or non-navigable waters of this state if the discharge of such

waste is going on prior to the time the County Commissioners take action to include the

polluted waters as a part of a water supply system.205

There is no dearth of statutory material concerning the construction of canals

in Florida, but it is all drafted with an eye to the solution of problems caused by too

much water rather than too little. Constitutional authority for statutes providing for

canal construction is found in Section 28 of Article XVI.

"Drainage of land. The Legislature may provide for the drainage of
the land of one person over or through that of another, upon just
compensation therefore to the owner of the land over which such drainage
is had.;

Numerous general statutes have been enacted, authorizing such construction for a

multitude of purposes.2

A survey of the Special Acts of the Florida Legislature reveals a considerable

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body of law creating special districts authorized to construct canals and ditches, improve

channels, and perform other similar functions.207

On the other hand, the 1956 water problems study indicates that there are few,

if any, specific controls limiting construction of canals,2 or filling of previously

constructed canals,209 by private individuals, even when these activities injuriously affect

neighboring canals. This problem has even arisen as a result of canal and other types of

construction by government agencies.210

In view of the wealth of Florida statutory material concerning canals, there is

surprisingly little case law in this area. The Florida Court has held that where the

Trustees of the Internal Improvement Fund conveyed land reserving a right to enter and

construct drainage canals, their grantee's vendee could not compel the former to make a

deed without such a reservation.211 In a 1916 case the court considered the natural capacity

rule that one may not overtax the capacity of a natural drain, and the diversion rule -

that one may not divert (by canal for example) waters into a natural drain if they would

not find their way into it naturally. The Court decided the case without taking a stand

in favor of either rule.212 In this particular case the plaintiff had dammed the mouth

of a creek and when the defendant ditched his land into the creek, plaintiff's dam was

submerged. It would seem that the court at least inferentially approved draining waters

into the creek though they would not have run into it naturally, so long as the natural

capacity would not be overtaxed. In a recent decision, in which the Central and South

Florida Flood Control District was defendant, the court held that a canal builder did not

have to improve its facilities so as to eliminate seasonal flooding when it did not appear

that the canal caused the flooding but rather that it merely failed to eliminate it

entirely.213

The federal government also encourages the construction of canals, but the pur-

poses of the congressional acts are broader than those sought to be provided for in the

Florida legislation. For example, Congress has granted rights of way through public lands

to canal ditch companies or to districts formed for the purpose of irrigation, drainage,

and other purposes of a public nature (including water transportation, domestic purposes,

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and the development of power, as subsidiary to the main purposes of irrigation or drainage )

to the extent of the ground occupied by waters of reservoirs and canals and 50 feet on

each side of the marginal limits thereof and such additional rights-of-way as may be
necessary for operation and maintenance.

LAKES, PONDS AND SINKHOLES
Neither the Florida Legislature nor the Florida Court seem to have set down a

definition of the word "lake" for use in Florida. As defined elsewhere, the term is usually

taken to mean a reasonably permanent inland body of water, substantially at rest, in a dep-

ression in the surface of the earth. Some definitions make a distinction between natural

lakes and artificial ones made by damming or diverting of a stream.215 Lakes are dis-

tinguished from streams principally by the fact that the waters of the latter normally

have a motion or current whereas those of the former are ordinarily at rest.216 The

distinction between lakes and ponds is based chiefly on size although mention is sometimes
217
made of the greater proportion of aquatic growth to be found in a pond.217 Absent

authority to the contrary, it is suggested that the Florida sink-hole generally fits the

definition of a pond and that abandoned phosphate pits may appropriately be considered as

artificial lakes or ponds, depending upon size.



Lakes are further classified generally as non-navigable, subject to private owner-

ship,218 and navigable, not subject to private ownership.219 Further distinction is made

between ownership of the bed of a lake and ownership of the superjacent waters.220 The

situation in Florida is rendered somewhat uncertain by the statements on the one hand that

"It is settled by the decisions of this Court that small lakes are susceptible of private

ownership in Florida"221 and on the other that "It may be regarded as settled that title

to all submerged lands, whether tide or fresh is held by the states in trust for all the

people of the respective states, that such trust is governmental and may not be completely

alienated but that in the interest of all the people, the states may grant to individuals

limited privileges or rights in such lands.:"222 In 1925 the legislature in granting and

confirming riparian rights in certain lakes in Lake County said: (T)he State ..

(is). the proprietor of all submerged lands and water privileges within its boundaries,

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