Title: Techniques of Acquiring Water Rights
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 Material Information
Title: Techniques of Acquiring Water Rights
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 - Techniques of Acquiring Water Rights
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002950
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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VI. TECHNIQUES OF ACQUIRING WATER RIGHTS


This section of the report deals with the methods, other than by acquiring

riparian or overlying land, by which one may acquire water rights. Such rights may

be acquired in three principal ways: (1) by grant or assignment, e.g., contract or

gift; (2) by adverse use for a prescribed number of years; and (3) by condemnation.

Each of these methods will be considered in turn as it applies to rights in surface

water, then as it applies to rights in ground water.

Acquisition by Grant or Assignment

Let us consider first the possibility of acquiring water rights in non-

navigable watercourses. Can such rights be acquired by grant in non-navigable lakes?

It has been established in Florida that waters of a non-navigable lake are subject to

private ownership.323 If the entire bed of such a lake is vested in one owner, it

would appear that he could dispose of the waters at his will, and, conversely, that

the right to such waters could be obtained from the owner by purchase or gift. If the

bed of a non-navigable lake is divided so that title is in two or more owners, one

such owner may not, absent agreement to the contrary, use its waters so as to work

a detriment to the others.324 What he may not do himself, he may not authorize

others to do by gift or grant.

Turning next to streams, the bed of a non-navigable stream is a subject of

private ownership,325 but no Florida law was found governing the use of the waters of

such a stream. Elsewhere, the use of such water is generally controlled by the same

rules as are applied to use of water from navigable streams, which are discussed next.

Navigable surface water is usually said to be the property of the public,

or of the sovereign in trust for the public.326 Riparian owners have rights in such

waters but these rights, although property in the sense that the owner may not be

deprived of them save by due process of law,327 do not constitute a property in the

water. As the Supreme Court of the United States has put it, the right is "usufructuary

in character, not a right to the corpus of the water itself.328
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For a time in Florida it was possible for a riparian owner to sever the

riparian rights from the lands bordering on the water,329 conveying the one and

retaining the other, or conveying to different grantees. Since 1953 this has not

been possible due to the enactment of what is now 271.09 (1), Florida Statutes,
330
1955.330 While 271.09 appears to be limited to streams by 271.06, which says

that Chapter 271 is not applicable to lakes, it is felt that the language of 271.06

does not apply to 271.09. The latter was passed as an independent act, and moved

to its present location as a part of the administrative compilation of the statute

books.

Since the Supreme Court of Florida has said that the right of a owner to

use water is restricted to uses beneficial to the riparian land,331 it seems clear

that such an owner cannot, without more, grant to another the right to use water

elsewhere than on the riparian land. Conversely, there seems to be no reason why

a riparian owner may not grant to another a right to use the water in what is considered

a way beneficial to his riparian land. Thus a riparian owner might grant a right to

another to erect and operate a mill on a part of his land, while reserving all other

rights in the land to himself.

If an easement for a public highway along the shore be obtained, by

dedication or by condemnation, the owner whose lands would extend to the water but

for the highway retains riparian rights and no riparian rights vest in the owner of

the easement.332 The rights of grantees of the owner at the time the easement was

obtained are uncertain, but seem to be the same as those of his grantor in Florida.33

The absence of riparian rights in the owner of an easement presents a serious impediment

to nonriparian owners seeking water from Florida's watercourses. To enable a non-

riparian owner to make diversions to nonriparian land, it seems necessary under present

law for him to obtain the fee interest in lands bordering the waters, and even then

diversions for use on nonriparian lands are of doubtful legality under existing law.


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Ground water could be severed from the overlying land and sold according to
334
the early common law. Apparently an overlying owner could reduce the water to

possession and grant it to whomever he chose in the same manner that he could mine

coal on his land and sell it. This view is on the wane in this country. The law of

Florida on this point, i.e., the rights to use ground water, is currently in some

doubt but should be clarified shortly in connection with the Koch v. Wick litigation.335

Apparently, at the present in Florida one may acquire the right to all the ground

water he can lift, so long as the use is reasonable, by dealing with the owner of over-

lying land, and without running afoul of legal restrictions, as he would in attempting

to acquire rights to use water from a watercourse by dealing with riparian owners.

Special legislation has been enacted creating districts of various sorts and

empowering them to acquire water rights of all kinds, but no provision has been discovered

in this legislation which expressly affirms or rejects any of the "law" set out above.336

One such statute authorized Pinellas County to enlarge its water supply system.337

Seemingly implied in the statute is the right to use water away from either riparian

or overlying land, depending on the source tapped, for it is hardly to be supposed

that the Legislature gave Pinellas County extensive powers to acquire land and water

rights within or without the boundaries of the county and failed to give the county

the right to use the water obtained under this statute wherever needed. How much

water the county may take once it has acquired the right of access is another matter,

and one as to which the Florida law is anything but settled.


Acquisition by Prescription

The length of time required in Florida for the acquisition of a prescriptive

right has been set by the Florida Court at twenty years.338 while the case in which

this was decided dealt with an access road, presumably bhe time period for the

acquisition of prescriptive rights to water would be the same. There are no Florida

statutes pertaining to prescriptive rights, nor have any cases been located dealing with

the acquisition of water rights by prescription. The possibility of acquiring water

rights by prescription thus is still an open question in Florida.
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If water rights are capable of acquisition by prescription, they might well

be co-extensive with those that may be acquired by grant, since one of the explanations

of the doctrine of prescription is that a grant is implied from long tolerance of

hostile use.339 Accordingly, the acquisition of riparian rights by a nonriparian

through prescription would seem to be precluded by Florida Statute. 9271.09 discussed

in the section on assignability of water rights since under the provisions of that

statute these rights are not subject to grant. This would preclude an owner from losing

his riparian rights to a party trespassing and using the water.

The possibility of prescription must still be considered in the case of one

riparian owner using either lake or stream waters to such a degree that other riparians

are injured thereby. If the offending riparian continues this consumptive use for

the prescriptive period,would he gain a prescriptive right to continue the use? The

courts have attacked this problem in three ways.

Under the first approach, the gaining of a prescriptive right is regarded as

similar to the gaining of adverse possession,which requires the use be adverse,

continuous, open, and hostile. However, it is not necessary that the use be exclusive--

an additional requisite in adverse possession. The use of water by one riparian not

needed or used by other riparians would not be adverse under this approach since the

latter would not be damaged and thus no prescriptive right could attend this use.30

According to the second group, all riparians have rights to an equal and

reasonable use of water. It has been held that these rights are not lost by non-user,341

and hence a prescriptive right cannot be gained against a non-using riparian owner.

The third view recognizes that water rights may be acquired by prescription.342

But assuming that a prescriptive right to water use may be gained, additional

problems must be considered. In the event of a future decrease in the flow of a stream

or the lowering of a lake by drought, to what amount of water in this diminished flow

or lowered lake does the prescriptive right extend? First, consider the reduction of

stream flow. Assume a natural flow of 25 inches, a diminished flow of 15 inches and

the prescriptive use established at 18 inches, leaving a flow of 7 inches. Can the
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prescriptive user now take all the water? Two California cases state that he can.343

But the Supreme Court of Washington held that the prescriptive user was entitled only

to a share in the diminished flow equal to the proportion which he was taking of the

natural flow, i.e., 18/25ths of the present diminished flow.34 The case dealt with

a prescriptive right acquired by a nonriparian user, but it is submitted that it

would be applicable to prescriptive rights acquired by a riparian user in a similar

jurisdiction.

A third possibility regarding the amount of water which may be taken was

presented by the Michigan Court.345 An adverse user had gained a prescriptive right

to withdraw water from a lake by use of a pipe placed at a particular level. When

the lake waters receded he was not permitted to lower his pipe to take the entire

amount the pipe could carry. The court reasoned he had gained a prescriptive right

to lower the level of the lake to the pipe but not to a particular quantity of water,

regardless of lake level. By analogy this decision may also be applied to a stream

with a diminished flow. A prescriptive user would then have a right to take the

number of inches over and above what he normally permitted to flow on to lower riparians.

Using the assumed figures above of 25 inches normal flow, prescriptive use of 18

inches, and diminished flow of 15 inches, prescriptive user would now be entitled to

8 inches, the amount over and above that which he had permitted to flow onward before.

Can prescriptive rights be acquired to percolating waters? Percolating

waters have been regarded as a part of the realty belonging to the landowner346 but

the Florida Court in the recently decided case of Koch v. Wick37 held the owner

is restricted to a reasonable use of these waters. In the Koch case, however, the

owner was removing the water from his property, Whether the reasonable use limitation

will extend to withdrawals for use on one's own property is not settled in Florida.

The question likewise remains open, can one acquire a prescriptive right to unreason-

able usage? It has been held elsewhere that a prescriptive right to percolating

waters cannot be acquired.348


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An additional problem with respect to the volume of water gained by

prescription is the extent to which continuity of use is necessary. Since water

requirements will vary, the amount to which the prescription will extend is an important

consideration. The New Jersey Court has held it extends to the least amount used, on

a dailyaverage, during the year in the prescriptive period in which the least total

amount was used as opposed to an overall average.39 Continuity is also a factor in

gaining a prescriptive right to flood the land of another. In flooding cases, it has

been held that temporary natural lowering during a drought period would not prevent

the gaining of a prescriptive right.350

Jurisdictions recognizing prescription hold that the character of the use

during the establishment of prescriptive use determines the extent of the prescriptive

right. Application of the general rule must necessarily turn on the facts of each

individual case but it is submitted the key may be whether a change in use of the

water, or place or manner of diversion of the water, will increase the burden on the

- servient estate and effect a greater injury. A change in the usage of water which

does not do this has been held to be immaterial.351'

A problem in character of use, while not dealing specifically with prescriptive

rights to water, was revealed by the County Committee hearings of the Florida Water

Resources Study Commission. A landowner has used canals on his land for over 20 years

for drainage and had constructed a dam on a stream running through his property over

which he pumped the excess water. This excess water had raised the level of a nearby

fishing lake. The landowner during the recent drought has been using the dam to

retain all the water from the stream and is using his drainage ditches as irrigation

canals.352 Is the use of this dam now such that it is inconsistent with its past "usage?

The lower riparian apparently cannot gain a prescriptive right as against an upper

riparian to the continued flow of water because the use of waters by a lower riparian

would not be adverse to rights of the upper riparian and the upper riparian is power-

less to stop the usuage.353 The lower owners, therefore, would not have a prescriptive

right to the continued pumping of excess water; but, under the riparian theory, they
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should be entitled to a reasonable portion of the normal flow of the water even though

they may not have a prescriptive right to such flow, unless the upper owner has gained

a prescriptive right to maintain the dam in the stream regardless of its effect on the

flow. This might depend on whether use of the dam at present for impounding water is

such a change in the character of its use as to effect a greater injury on the lowe(

owners. If so, a prescriptive right to have the dam in the stream for drainage purposes

may not be sufficient to extend to its use for impounding water for irrigation.

Further prescription problems not dealing directly with water usage involve

pollution and drainage. In most jurisdictions a prescriptive right to pollute a stream

may be acquired where the pollution constitutes only a private nuisance,354 but it

is generally recognized that one cannot gain a prescriptive right to maintain a public

nuisance.355 Pollution of a stream to the detriment of the public would constitute

such a nuisance.356 A prescriptive right to the use of a drain running across another's

property and discharging thereon also may be established in some jurisdictions.357

A number of specific problems possibly involving questions of prescription

were brought out in the 1954 and 1956 county surveys. These included a number dealing

with drainage, either through natural drainage ways or artificial ditches; the

lowering of lake levels by one riparian to the detriment of the others,359 and the

damming of streams by an upper stream owner which in drought periods completely deprives

a lower owner of water.360 Jhile all of these problems involved actions that had been

going on for some years, none dealt specifically with a time period sufficiently long

to raise the problem of a prescriptive use acquired. Presumably, however, some may have

extended this long and even those that have not represent a potential problem area.

Two of the most important factors in any water management plan are flexibility

and ability to control water usage. Extension of the doctrine of prescription to

water use cases may seriously affect both of these factors. Flexibility is lost if any

riparian owner has established a right to a specific amount of water not in accord

with a reasonable amount. As water availability varies with the seasons and in times


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of drought, the amount of water to which each riparian owner is reasonably entitled

likewise varies. The doctrine of prescription precludes such variations. It would

likewise interfere with log range water management planning by an administrative agency.

One way of retaining flexibility in this area would be legislation prohibiting

the acquisition of prescriptive rights to the use of water.


Acquisition by Condemnation

Eminent domain proceedings constitute the third technique of acquiring water

rights to be considered in this report. Eminent domain is said to mean "nothing more

or less than an inherent political right, founded on a common necessity and interest,

of appropriating the property of individual members of the community to the great

necessities of the whole community.'361 The Florida Supreme Court has defined eminent

domain as the power vested in the state to take private property for public use.362

Limitations on the exercise of the power of eminent domain in Florida, and

on the rightsof the state as sovereign, are to be found in the Fourteenth Amendment

to the United States Constitution and Section 12 of the Declaration of Rights of the

Florida Constitution. These limitations provide that no person shall be deprived of

life, liberty, or property without the due process of law and that private property

shall not be taken without just compensation. It should be noted that the Florida

Constitution does not expressly require that the private property must be taken for

public use.

In a fairly recent case the Florida Court indicated that the exercise of the

power must be in the interest of the public health, morals or safety in order to be in

harmony with the constitution.364 This seems significant in view of the fact that there

are two schools of thought on the proper construction of the term "public use" in regard

to eminent domain. Under one view, "public use" means "for use of the public". Under

the other, the same term is taken to mean "for the advantage or benefit of the public."

Reflection will reveal that the latter construction could remove the limitation from the

exercise of the power of eminent domain in almost any case in which it might be asserted,


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since there is sure to be benefit to the public in the form of increased commerce,

additional employment opportunities and the like when any new industry is established

in a community. By general legislation the Florida legislature had delegated the

right to exercise the power of eminent domain to flood control and drainage districts,36

railroad or canal companies,365 any person desiring to erect a dam for furnishing power

for a water grist mill, electric light power, or other machine for public utility,366

any corporation organized under the laws of this state for the purpose of supplying

urban residents with water, the board of supervisors of a drainage district,

the governing board of flood control districts,9 the council of any municipality in

the state,370 the governing body of any unit in the state,371 the board of commissioners

of any erosion prevention district,372 any municipality or private company or corporation

authorized to proceed under the Municipal Public Works Law,373 and the boards of

commissioners of anti-mosquito districts.374 The delegation of the power is made in

different words in the several statutes, but it would appear that it is sufficiently

broad in all of them to reach rights to the use of water as well as riparian or overlying

land. The power of eminent domain has also been delegated by special legislation to a

sanitary district,375 a water department, and an aqueduct district3 to mention a

few typical agencies.

Once it has been established that the state, or a proper delegate of the

state, has the power of eminent domain over the rights to use of water, the question

arises as to compensation to those whose property is to be condemned. Riparian owners

on navigable waters do not seem to have a right to compensation even though the
378
condemnation of the water- use right may reduce the value of their holdings. The

courts reason that navigable waters are property of the state in its sovereign capacity

in which riparian owners' rights must be subordinated to the rights of the public.379

The objections by riparian owners to this rule, based on the due process clause of

the Fourteenth Amendment, have been met by the decision of the United States Supreme

Court that the property rights of riparian owners are governed by state law.380


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The situation of landowners whose lands contain, or are crossed or bounded by, non-

navigable waters is otherwise. Non-navigable waters are private rather than public
381
property and they may not be taken for public use without just compensation.31 On

principle, it would seem that ground water should take the same rule as non-navigable

surface water. It is categorized by the Pinellas County Circuit Court as property

of which the owner cannot be divested except by the procedure outlined in the

Constitution382 and the constitutional provision includes just compensation.

Jhen the right to use non-navigable surface waters is acquired by condemnation,

the measure of the "riparian" owner's damages is the resulting depreciation in the value

of his land, i.e., the difference between the market value of his land before the

condemnation and its market value thereafter,383 the presumption being that the injury

will be permanent.384 The same measure of damages has been applied in connection with

condemnation of ground water rights in other jurisdictions.385

As to property owned by the federal government, it is settled that "a state

cannot take by eminent domain land owned by the United State, and devoted to govern-

mental uses, and a like rule obtains as to lands of the United States not used or

needed for governmental purposes, irrespective of the manner in which such lands were

acquired or their location.86

From the material set out above, it would appear that municipal water users

have the power to reach water needed for public purposes, wherever it may be in the

state, through eminent domain proceedings. The problem confronting this group of

users is that of locating usable supplies rather than that of obtaining rights to the

water once it has been located.

Agricultural users are not in as secure a position as are the municipal users.

Once again, this would seem to reflect the fact that in rural Florida, until quite

recently,there has been more water than was needed. Irrigation districts created by

the legislature might assert the right to eminent domain to acquire water rights under

Chapter 159 of Florida Statutes, or the power of eminent domain might be given them

expressly. The difficulty with this procedure lies4not in the language of our
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constitution so much as in the uncertain reception of such an action by

the Court. The key question is: "Would the district be condemning the

rights for a public use?" Drainage districts serving limited areas have

asserted eminent domain to acquire rights of way for drainage ditches
387
and that use has been declared to be a public one by our court. But

the court might feel that the exercise of the power by an irrigation

district would require acceptance of the "public benefit" doctrine--a
388
doctrine toward which the Florida Court seems cool.388

The present eminent domain law of Florida is least encouraging from

the point of view of the heavy industrial user whose needs cannot be

filled through a public water supply system. The general legislation and

the court decisions do not seem to manifest any concern over the problems
389
of this type of user. Two special acts of the Florida Legislature3

have a condemnation flavor about them but make no provision for compen-

sation. These acts in effect set aside the Fenholloway River and the tidal

waters of Nassau County as industrial sewers, since the rights of riparian

owners and others to object to pollution is effectively divested. This

approach does not commend itself as a general one to solve the problem

of the industrial user because it is disproportionately wasteful of the

legislature's limited time, because it does not afford present or pros-

pective industrial users with a satisfactory basis for prediction, and

because it may be unconstitutional in that it does not provide compensation

for those whose property is, in a sense, taken. In addition it might be

susceptible to attack on the ground that the use may not be a public one.

Constitutional tax exemption for favored enterprises is one technique the
390
people of Florida have used to stimulate industry. The court has been

astute in extending to the tax-favored enterprises immunity from public

nuisance injunctions based on unavoidable pollution incident to their
391
operation,3 which seems- to indicate a favorable judicial reception to
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