Title: Difused Surface Waters
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002948/00001
 Material Information
Title: Difused Surface Waters
Physical Description: Book
Language: English
Publisher: Florida Water Resource Study Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Difused Surface Waters
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002948
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


Surface waters, or diffused surface waters as they are more accurately called,

are those waters resulting from falling rain or melting snow or those rising to the sur-

face in springs, which have not collected in a lake or pond or natural watercourse and
are still in a diffused state or condition.260 Apparently neither the Florida Supreme

Court nor the Legislature has attempted to define "diffused surface waters".

In the past, the diffused surface water problem in Florida seems to have been
one of disposal. The attention of the legislature has been directed to methods of
drainage and litigation has dealt primarily with this same aspect of surface water

control. This picture is in the process of changing today. Although the vast underground
water reserves of the state are largely undiminished, the recent drought has caused

serious shortages in available surface water.2 Increasing conflicts resulting from

the demand for the existing supplies are to be expected, especially in view of our expand-

ing population and industrial and agricultural development.

The general principle as to ownership and control of diffused surface waters

has been stated to be that ... "the owner of the soil has an absolute right to the sur-

face water thereon, and he may in the improvement of his lands, or for his own use, retain

all such water, and prevent it from percolating or flowing upon the lower land of an

adjoining proprietor; or he may so drain the surface water as to prevent any portion of it
reaching the lower lands."265 Some jurisdictions impose "reasonable use" limitations on

this doctrine, but in Florida the problem seems not to have been considered.

Common Law Rules Concerning Disposal of Diffused Surface Waters

There are two separate doctrines concerning the right of an upper owner to drain

his land over that of an adjoining lower owner and the right of the lower owner to turn

the draining surface waters back upon his neighbor: (1) the civil law rule, providing that the

upper owner has an easement in the lower owners land for the water to drain in its

natural manner; and (2) the common law rule, or common enemy doctrine, under which the

lower owner may take any measures to keep the water off his land, even to the point of

turning the water back on the land of the upper owner.

In dealing with this problem, the Florida judiciary has not expressly adopted

either rule. A 1953 lower court decision from Hendry County apparently applies the common

enemy doctrine. The circuit judge justified this decision on the ground that the practice

common in the area is for each man to protect himself as best he can.266 The decisions

of the Florida Supreme Court, however, tend to favor the civil law rule.267 The balance

of convenience doctrine may be applied to cases in this area, as in other areas of water
use and disposal,268 and in this light, the court has indicated its intention to dispose
of these disputes on the particular facts and circumstances of each case. Recent

studies clearly evidence that the problem is of major proportions in many areas of Florida.

The easement or right under the civil law rule which an upper owner has,

entitling him to drain surface waters over the land of his neighbor, is generally not

taken to permit him to collect the water and cast it upon the lower lands in greater

quantities than would naturally result. A dictum in a Florida case, Brumley v. Dorner,
seems to adopt this principle.1 In the Brumley case, the problem was not one of merely

collecting and draining more water on the lower land than would naturally flow there, but

of collecting and diverting water to an area where it normally would not have gone. On this

point the court said,

"The almost universal rule as gathered from the decisions is that
no person has the right to gather surface waters that would naturally
flow in one direction by drainage ditches, dams, or otherwise, and
divert them from their natural course and cast them upon the lands of
the lower owner to his injury."


The second recognized limitation is that an owner may not divert waters into a

drain or watercourse if the waters would not have found their way there naturally. There
is a dictum indicating that this limitation will apply in Florida,277 but it has not been

expressly adopted. The requirement is closely analogous to the general principle concerning

drainage into neighboring lands to the effect that an upper owner may not collect and divert

water on to a neighborTs land if the water would not have naturally flowed there. As dis-

cussed in the Brumley case, supra page 46, the latter principle is accepted law in Florida.

The third limitation is often called the natural capacity doctrine an adjoining

owner may not drain his lands into a natural drain or watercourse so as to overtax the

capacity of the drain. This limitation has been considered by the Florida Court, and
indications are that this requirement will also be followed in Florida.2
As the upper owner has the right to drain into/natural watercourse, so the lower

owner apparently has a duty in Florida to keep the watercourse clear where it flows through

or along his property. This duty or responsibility of the lower owner has been recognized
by the Florida Court in at least two cases in which the lower owner was the complainant,

as well as in situations in which upper owners sought damages for flooding of their lands
as a result of the lower owners' partial blocking of the natural drainways.2

This is one of the problem areas pointed up in the studies. While it seems clear

that an adjacent owner does not have the right to block or obstruct a natural drain,281 the

question is not so clear as to responsibility for sedimentation and other natural causes

creating restrictions in the drains.282

State Legislation Concerning Diffused Surface Water

There are a number of Florida statutes of general application that are concerned

with diffused surface waters.283 As might be expected, the emphasis in the earlier statutes


is primarily on drainage and disposal while later statutes give some attention to
conservation and distribution. The approach used at least until very recent years,

by the Florida Legislature has been to provide for the creation of relatively small districts
for particular purposes; e.g., drainage, mosquito control, reclamation of overflowed lands.

The powers given to these districts often are quite broad, and may be limited

only by what is necessary or convenient to the accomplishment of the purpose for which

the district was established.

In addition to this general legislation there are numerous special acts which

must be taken into account in any consideration of the law as to diffused surface waters.

Because of time limitations, investigation was limited to the special acts of 1925, 1953,

and 1955. This limited research revealed a large number of such acts creating various

types of districts, usually within a designated county. The purposes of these districts

parallel those of the general statutes mentioned above. Both the general statutes and the

special acts have been discussed in more detail in other sections of this report.286 It

is worthy to note, however, that under the present statutory scheme there may be as many

as a half dozen autonomous districts operating in, around, or across the same piece of

real estate, each one possessed of the power to regulate, in one way or another, the

collection or distribution of diffused surface waters.

i' Federal Laws

The interest of the Federal government in diffused surface waters does not differ

markedly from its interest as previously discussed in connection with streams, canals, lakes,

and ponds. The same agencies are involved and in general, the same rules probably apply

with regard to diffused surface water on federally owned land as apply to water in lakes

or ponds on such lands. Control of surface water so as to conserve it and prevent soil


erosion is a matter in which the federal government is interested and in connection with

which Congress has acted.287 Perhaps most important, the federal government is interested

in diffused surface water as it affects the navigability of streams and the problems

incident to flood control. The research into possibilities of federal intervention in

water problems has clearly indicated that any water control legislation should be drafted

with an eye to the possibility of federal activity in a period of water shortage.


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