Title: Lakes, Ponds and Sinkholes
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002947/00001
 Material Information
Title: Lakes, Ponds and Sinkholes
Physical Description: Book
Language: English
Publisher: Florida Water Resources Study Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Lakes, Ponds and Sinkholes
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002947
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

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.

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

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.2 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,


which prevents the riparian owners from improving their water lots .2 An owner

whose boundary was the meander line of Lake Okeechobee was unsuccessful in his attempt

to claim lake bed uncovered by the lowering of the lake. In disposing of the case, the

Florida said:224
"A riparian owner is one who owns to the line of ordinary high water mark
on navigable waters. ."

"If to serve a public purpose the State, with the consent of the federal authority,
lowers the level of navigable waters so as to make the water recede and uncover
lands below the original high water mark, the lands so uncovered below such high
water mark continue to belong to the state.: (Emphasis added.)

In an earlier case, the Court stated that riparian rights arise by implication of law, and

give no title to the land under navigable waters except such as may be lawfully acquired

by accretion or other natural cause.225

The Legislature in 1953 cleared the air considerably by the enactment of what is

now 9 271.09 of the Florida Statutes. This legislation establishes that the submerged

lands of any non-meandered lake shall be deemed subject to private ownership if they were

conveyed prior to 1903 by the trustees of the internal improvement commission without

reservations for public use and have been taxed to the "owner" since that time. Sub-

section 2 of this law in effect seems to render land underlying any lake conveyed to

private individuals by the United States or the State of Florida prior to 1953 subject to

private ownership by virtue of the device of declaring that the term "navigable waters"

in Florida shall not extend to such waters.226

Who is a riparian owner on a lake? He who owns land bordering on navigable

waters. The land to which the owner holds title must extend to the ordinary high water

mark of the navigable water.227

Under the present law riparian rights are appurtenant to and inseparable from

the riparian land.228 Riparian land is land bounded by or crossed by navigable waters.

The importance of the characterization of a body of water as navigable or not cannot be

over emphasized in this connection.

'What are the riparian rights of one owning on a lake? Generally the same rights

incident to riparian holdings on a stream or on the ocean: navigation, fishing, boating,


ingress and egress and view. The right of ingress and egress may not be emasculated by

closing off the cove upon which the uplands face so as to change a right to enter on a

very large lake into one to enter upon a pond.229 It seems appropriate at this point

to indicate that the Florida Riparian Acts of 1856 and 1921 do not extend to lands on our

fresh water lakes but only to lands upon streams, bays of the sea, or harbors.230 In

1927 the Florida Court, although denying a bill to enjoin lowering the waters of Lake Johns,


"It is elementary that the shore owner may prevent an injury to his land
by the lowering or raising of the waters beyond the natural limits of low and
high water mark by whatever means ."

While the justice indicated the principle of law was elementary, a practical solution to

the problem is not. In addition to numerous specific instances of individual action

resulting in lowering of water levels, the problem has been seriously aggravated in recent

years by a state-wide drought.233 The Court went on to define the level of a lake:

.. the word 'level' in having reference to waters in lakes and ponds
seem (sic) to mean a line at which the water usually stands when free from disturb-
ing causes, or as the usual or ordinary height, or as the mean altitude or distance.

The meaning of high water mark on a non-tidal lake also received the attention of the court

in this same case and is stated to be determined by examining the bed and banks and ascer-

taining where the presence and action of the water marked the soil of the bed so as to

distinguish it from the banks both as to vegetation and as to the soil itself.

The place of diversion of water from a lake has not apparently been the subject

of litigation in Florida, and in the great majority of cases would seem to provide no

ground for objection by other riparian owners. The distinction between a lake, where any

withdrawal wherever made will lower the level equally in all parts of the lake, and a

stream where a diversion at a point above an adjoining owner's land might reduce his water

power or decrease the amount of water available to him would seem to indicate a different

rule for lakes than for streams insofar as the place of diversion is concerned.

Consideration of the right to use the waters of lakes may be made conveniently

under two headings: first, the right to use and consume the waters, and second, right to

use the waters without consuming them but so as to affect their suitability for use by


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others. Riparian owners on a navigable lake seem to be in much the same situation as

those owning on a stream, and while no Florida cases on this point have been located, the

decision in a 1950 case concerning a non-navigable lake was that, except for natural

uses (drinking, washing, cooking, watering stock), each owner on a lake must not use its

waters so as to work a detriment to others owning land on the same lake.234 This decision

is particularly significant because the court was clearly presented with an opportunity

to favor artificial, (irrigation, manufacturing) uses over natural recreational uses. The

Court said:

"The fact that one riparian owner may choose to use the water in the lake
for recreational purposes while another may desire to divert it for an artifi-
cial use such as irrigation will not give the latter a superior right to take
water to the dotrimiet of the former, for in this jurisdiction, there is no
distinction in respect to use between a farm and a summer residence."

The legislature has prohibited the drawing of water from lakes of greater area than two

square miles so as to lower the level of the lake without the written consent of all owners

of property abutting upon or bounded by the lake except as to lakes wholly within the

Everglades drainage district.235 One who has no right of access to the lake has no right
to the waters of it, which should come as no surprise, and/is Florida authority supporting,

at least inferentially, this statement.236 The foregoing rules apply to the ordinary

situation regarding lake levels and must be qualified with respect to flood waters:

:Flood waters which are of no substantial benefit to a riparian owner or to
his land and are not used by him, may be appropriated by any person who can law-
fully gain access to the stream (sic) and may be conducted to lands not riparian,
and even beyond the watershed of the stream, without the consent of the riparian
owner, and without compensation to him.:.237

The authority reposed in Mosquito Control Districts by the Legislature is such

that their operations around lakes, while not strictly consuming operations, may have an

even more drastic result. A pond or lake 'wherein mosquitoes incubate or hatch" is under

Florida law a public nuisance and, as such subject to be abated.238 The governing board

of a mosquito control district is enjoined to use larvacides in such a way as to control

mosquito breeding but not to harm fish in one part of the law,239 but in another is

specifically authorized to fill lakes and ponds so long as the work does not interfere with

the water supply of any city or community or create objectionable or noisome conditions.240


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The uses of waters of a lake which do not result in consumption of the waters

are primarily bathing, fishing and boating. If the lake is non-navigable its waters are

subject to private ownership241 so that those who own the surrounding land may properly

exclude non-owners from the lake. A 1918 Florida case held that the City of Orlando

could not by ordinance deprive such owners of the right to bathe in their lake even though

the city was attempting to use it for a water supply.242 However, today there is ample

authority for a municipality to seize a lake for similar purposes and exclude everyone

from bathing in it.243 The county may not properly seize land and build a road to the

shore of a non-navigable lake.244 But what are the rights of the owners of lakefront

property as among themselves? Surprisingly enough, no Florida cases on this point have

been found. In other states two views may be found, one allowing each owner to boat,

bathe and fish all over the lake, the other allowing an owner to fence off his part of

the lake and exclude others from it.245 If the lake is a navigable one the owners of

adjoining land have riparian rights appurtenant to their land but no right to the sub-

merged land in front of their uplands such as were granted to owners on navigable streams,

bays or harbors by the Florida Riparian iActs of 1856 and 1921. These latter submerged

lands are held in trust by the state in its sovereign capacity for all the people of the

state.246 The waters of navigable Florida lakes are also in all likelihood controlled

by the state in its sovereign capacity so that the general public has a right to fish,

bathe and boat in such waters. In this connection Chapter 271 of Florida Statutes should

again be considered because it excludes from the navigable waters of this state "any

permanent or transient waters in the form of so-called lakes lying over and upon

areas which have heretofore been conveyed to private individuals by the United States or

by the state without reservation of public rights in and to said waters.247 This section

was added in 1953 and establishes a legislative exception to the judicial criteria for

navigable waters.

Lakes lying within the bounds of national parks or national forests are subject

to the control of Congress under the Property Clause of the United States Constitution.

Waters in national forests may be used for 'domestic, mining, milling, or irrigation


_ _._ _______IU~_I _________ ~___ ~ ~ ___

purposes, under the laws of the state wherein such forest reservations are situated ."248

but permits for such use must be obtained from appropriate federal officials. The Soil

Conservation and Allotment Act249 also furnishes authority under which flood control,

water conservation and similar projects affecting lakes may be undertaken. No federal

legislation exclusively concerned with lakes has been located.

In a recent opinion of the Attorney General of Florida it is stated that the

United States has "a perpetual right-of-way easement or license for the construction, up-

keep, maintenance and reconstruction-' of the Okeechobee Levee and other works constructed

in the Caloosahatchee Lake Okeechobee Drainage Area.250

Although no Florida cases concerning "private: regulations of lake pollution have

been found it would appear that there is no reason why the usual private remedies of suit

for damages or for an injunction would not be available. Through the general pollution

act of 1909, the legislature has provided for public regulation in terms which seem broad

enough to embrace any pollution:251

"Any person who shall deposit in any of the waters of the
lakes in this state, any rubbish, filth, or poisonous or deleterious
substance liable to affect the health of persons, fish, or livestock,
or place or deposit any such deleterious substance in any place where the
same may be washed or infiltrated into any of the waters herein named, shall
be deemed guilty of a misdemeanor. .:

This legislation would seem to cover some of the problems raised in the 1956 Florida Wiater

Resources Study.252 Enforcement of this act is delegated to the State Board of Health.

In providing special acts for industrial and manufacturing water users, the 1955 Legislature

was careful to save the power of the board of health to regulate pollution.253 The Florida

Statutes concerning waste from mines254 concerns itself solely with deposits made in the

streams and rivers of this state. It seems unlikely that a lake would be used for deposit

of mine wastes, but if such a course should become feasible from an engineering viewpoint,

there is a gap in the pollution control scheme worthy of attention. Cities and towns in

Florida probably have authority under the public welfare section of the General Municipal

Powers Act255 to regulate activities tending to the pollution of lakes within their limits

provided no infringement of constitutional property rights is involved.256 On the other

hand, the statute specifically extending jurisdiction of cities to waters within their


limits speaks only of rivers, creeks, harbors or bays.257

The General Pollution Act of 1909 provides only criminal sanctions for violations

of its provisions.258 A number of the later acts, especially the special acts creating

special improvement service districts, sanitary districts and other similar type districts

have provisions for injunctive sanctions to prevent pollution, as well as criminal

sacntions to punish it.259

Federal interest in pollution seems to have no particular provisions for lakes

exclusively but the general program of providing technical and coordinating services

through the office of the Surgeon General of the Public Health Service is probably as

available for lakes as for other bodies of water.


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