Title: Legal Remedies
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002951/00001
 Material Information
Title: Legal Remedies
Physical Description: Book
Language: English
Publisher: Rlorida Water Resources Study Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Legal Remedies
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002951
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

this technique. Perhaps the recognition of the desirability of large private

industry by the people of the state, manifested by a constitutional

provision empowering political subdivisions of the state to assert the

right of eminent domain for the limited objective of securing water rights

for favored industries would provide a more direct solution to the water

problems of such users.


The material on techniques of acquiring water rights logically leads

up to a discussion of the legal remedies available for invasion of those

rights. The degree to which these remedies as a practical matter protect

the holders of existing rights will determine the extent to which infringers

on those rights may be in a position to exercise a sort of private eminent

domain by simply taking the water and taking their chances on later


Three possible legal remedies for infrigement of water rights will

be discussed. The first is the injunction in a court of equity, which if

obtained will prevent future infringement. The second remedy is an

action at law for money damages, which are generally limited to damages

for past harm done by the infringer rather than preventing further infringe-

ment. The third is the declaratory judgment, so far used very little in


Availability of Injunctive Relief

The preferred type of relief against tortious interference with water

rights is the injunction rather than the action for damages. This is

because injunctive relief is preventive and can furnish relief before,

instead of after, a threatened violation. Moreover, in many cases

involving water rights, injunctive relief may be the only effective

sanction because provable injury may be so small that a judgment for

damages would be valuable only as a means of preventing the gaining of
...... mim .. illu m a l

a prescriptive right by the defendant. In addition, if the injunction

is available, damages for past harm can be obtained as an adjunct to the
specific relief given in the equity suit for the injunction.3

Traditionally, however, injunctive relief, being a type of equitable

relief, has been considered to be an extraordinary remedy as compared

with the normal relief in court of law by way of an action for damages.

Consequently, the chancellor, in considering whether to grant an injunction,

has a certain amount of freedom to withhold injunctive relief for reasons

of policy and remit a complainant to his action at law for damages. Some

southeastern courts, however, have denied this discretion to the chancellor,

and succumbing to the demands of predictability, have taken the position

that a person whose legal rights are invaded is as absolutely entitled

to an injunction as he would be to damages in a court of law. Thus the

Georgia,393 West Virginia,3 and apparently the South Carolina395

courts have taken a strong position against the discretion of the

chancellor to deny injunctive relief in such cases.

One reason for this strict approach is the position taken by some

courts that in cases involving interference with water rights, as in

adverse possession cases, the prescriptive period for gaining an adverse

right begins as soon as the interference commences.396 To deny an

injunction for the purpose of stopping the prescriptive period would in

effect be a denial of all relief in those cases where no damage to the

plaintiff from the invasion could be shown, since failure to prove damages

might well result in dismissal in a court of law.397

In a jurisdiction such as Florida where no decision has yet been

rendered on the time when the prescriptive period begins to run in such

cases, the argument concerning the need of injunctive relief in cases

not involving substantial harm to prevent to running of the prescriptive

period could be disposed of on the theory that the infringer does not make

an unreasonable use of the water until there has been actual damage to

the complainant, and consequently, there has been no interference with

the latter's rights and no basis for the beginning of the running of
the prescriptive period.398 This would leave the chancellor free to

exercise traditional equity discretion by applying the balance of conveni-

ence doctrine under which he would be free to consider the conflicting

social interests of the parties and the public interest in determining
whether to grant or deny the extraordinary relief by way of injunction.3

In a number of recent southeastern cases in which the public interest

weighed heavily against the complainant, injunctive relief was denied.

A 1952 Alabama case denies injunctive relief against pollution of a

stream by a limestone company;400 a 1940 Arkansas case denies an injunc-

tion against pollution by a barium mill;401 and in a 1934 Louisiana case

the court refused to enjoin the operation of a paper mill despite result-

ing stream pollution.402 The Supreme Court of Florida has used the

balance of convenience doctrine to protect the public interest in two

pollution cases involving municipalities, where the granting of injunctive

relief would leave the city without any means of sewage disposal.4

When only private parties are involved, however, the public interest

may not be so apparent. The Florida Court has been more reluctant to use

the balance of convenience doctrine in cases where the problem has been

one of measuring the relative hardship to two private interests. Thus

in Taylor v. Tampa Coal Company,404 a riparian grove owner was enjoined

from irrigating his grove from a small non-navigable lake where the

irrigation was so lowing the level as to interfere with recreational use

by another riparian. The fact that the Florida Court has applied the

balance of convenience doctrine in the public interest,however, may

provide some safeguard for industrial users, for if an industry becomes


established in an area, and is of sufficient economic importance to

it, the chances are that a court would balance the equities in favor
of the industry as was done in the southeastern cases above mentioned.4

There are a number of related limitations on the use of the

injunction, some of which have been applied by the Florida court as a

basis for denying injunctive relief. One of the most important of

these is the doctrine of laches, under which a complainant may be refused

injunctive relief if he has slept on his rights while the defendant

has acted to his prejudice, as, for example, by building an expensive

industrial plant depending on the use of the water in question.406

On the basis of the doctrine, the Florida Court in 1927 refused to order

the removal of a pier which obstructed the plaintiff's view where he

failed to complain until the pier had already been constructed.

In other cases relief has been denied on the basis of the clean

hands doctrine. In one Florida case complainant sought to have defend-

ant's dike removed by mandatory injunction. Injunctive relief was

denied since plaintiff also had built a dike which deflected water on-

to the defendant's land and thus was also a wrongdoer. He did not
come into equity with clean hands.407

Where the threatened injury is trivial it may call for the applica-

tion of the de minimis principle.408 An illustration is a 1921 case

whero a riparian owner was unable to enjoin the erection of a railway

bridge when the chief harm seemed to be obstruction of his view.4

Other courts have denied injunctive relief where it appeared that the

injunction was being sought primarily to be used as a club for the

purpose of extorting an exorbitant settlement from the defendant and

the court was unwilling to allow itself to be used as an instrument
for such extortion410
for such extortion.


The Florida courts have not used the balance of convenience doctrine

in favor of an outright trespasser who has no legal claim to any of the

water he is appropriating. Thus, in 1953 a circuit court enjoined the

drilling of wells on a county road right of way in Pinellas County for

the purpose of augmenting a public water supply where the complainant was

the landowner abutting on the highway, and as a result the owner of the

land underlying the road right of way. Would the court take the

same position in favor of an injunction against nonriparian use of

water from a surface watercourse where the withdrawal would likewise

constitute a trespass?412

Whether the court will apply the balance of convenience doctrine

to allow withdrawals of ground water for non-overlying use by a

municipality is one of the problems that may have to be considered in
the re-trial of the important ground water case of Kcch v. Wick

discussed in the ground water section. In sending the case back to

the circuit court for retrial to determine whether Koch was damaged,

the Supreme Court did not discuss the applicability of the balance of

convenience doctrine. While some courts have balanced the equities in

cases involving municipal water supplies on the ground of public

interest,other jurisdictions, including Virginia, have stayed injunctive

relief only on condition that the municipality proceed to obtain the

needed water rights through eminent domain proceedings, leaving the

municipality to make withdrawals for a reasonable time during the pendency

of such proceedings.414 The latter approach preserves the defendant's
right to a jury trial which is available to him in the eminent domain


If the court does decide to balance the equities in favor of the

defendant, it may impose conditions to the denial of injuctive relief so


as to protect the complainant as far as possible. Thus, in City of

Lakeland v. Harris415 the court, as a condition to denying injunctive

relief against stream pollution by a municipal sewage disposal plant,

ordered the municipality to take all feasible measures to cut down

the amount of pollution. (Parenthetically, the city has since built

a new sewage disposal plant and the need for injunctive relief no

longer exists.) Likewise, if the court decides to grant the injunction,

it will try to condition its order so as to allow the defendant to

continue his operation if he can do so without further injury to the

complainant. For example, rather than enjoining the operation of a

railroad whose embankment backs up water on the plaintiff's land, the

court may order the railroad to so alter its embankment as to no longer

obstruct the flow of surface waters.416 This device of the conditional

or partial injunction has been used in some jurisdiction as a means of

apportioning water between different riparian users, but no Florida cases

were found in which the court used the injunction in this way.

Another interesting ground for denying injunctive relief has been

developed in a series of Florida cases beginning with the case of
National Container Corp. v. State7 In that case the Supreme Court of

Florida refused to enjoin the erection of a pulp mill on the St. John's

River which complainant claimed would constitute a public nuisance. The

Court dismissed the complaint on the basis of a constitutional amendment

of 1930 exempting certain industries, including pulp mills, from taxation

for a period of 15 years as an inducement to such industries to come into
the state. The Court took the position that/people of Florida by passing

the amendment had invited the industry to establish plants within the

state, and had thus lifted the operation of a pulp mill out of the

category of a public nuisance.


This doctrine of constitutional authorization of what would other-

wise be a public nuisance was extended in another water pollution case

to authorize the legislature to take something out of the class of public
nuisance. The case, Watson v. Holland, involved a request for an

injunction against the drilling of oil wells in tidal waters on the ground

of pollution. The court cited a Florida statute authorizing the

Trustees of the Internal Improvement Fund to execute oil leases on sover-

eign lands located in tidal waters, and held that, as a result of this

statute, oil wells properly operated have been lifted out of the class
of public nuisance. The question still seemingly remains open

whether these decisions rule out the possibility of relief, at least

by way of damages, on the theory of private nuisance. Arguably due process

of law requires compensation for the taking of private property rights

in such cases and therefore the legislature could not lift these

infringements out of the category of private nuisance.

A further point of interest in connection with the balance of

convenience doctrine is whether a court is free to use this doctrine

in a case where the basis for injuctive relief is a statute rather than

the common law, as, for example, the provision for injunctive relief

in an anti-pollution statute20 This question would be important in

connection with legislation granting the injunctive sanction as an

enforcement measure to an agency set up to administer a new water code.

A Texas court has taken the position that the balance of convenience

doctrine has no application to such a case, and therefore the court

must grant the injunction.421 But the Supreme Court of Tennessee in a

series of nuisance cases has held that if a statute provides for an

injunction or damages, the court has the authority to balance the

equities and deny injunctive relief, leaving a complainant to his


alternative remedy by way of damages.422 If the question should arise

as a result of an administrative request for injunctive enforcement of

an agency order affecting the use of water, it could be argued that

the discretion concerning enforcement should lie with the agency and

the discretion of the agency should replace the traditional discretion

of the enforcing court, which should not be allowed to balance the
equities in such a case. A court might be reluctant to accept this

argument, however, unless the matter was spelled out in the statute

creating the agency.

Assuming a Florida court does balance the equities in a particular

case and deny the complainant injunctive relief, can the chancellor

award damages and thus save the plaintiff from having to begin a separate

action at law to obtain such relief? While this means of avoiding a

multiplicity of suits is appealing, it is arguably contrary to constitu-

tional guarantees of a jury trial in cases where damages only are involved,

and the traditional English position was that when the court denied

injunctive relief, it lost jurisdiction to award damages.424 A number

of American jurisdictions when balancing the equities in pollution

cases have used the device known as the conditional injunction as a

means of awarding damages in equity, the condition being that if the

defendant does not pay adequate compensation as determined by the

chancellor, then the injunction shall issue.425 In one such case the

Supreme Court of the United States preserved the plaintiff's right

to a jury trial by giving him the alternative of accepting damages to

be assessed by the trial court or if he preferred to have his damages

assessed by a jury giving him leave to dismiss his bill in equity with-

out prejudice to an action at law.426


However, in all the Florida water cases in which the court has

balanced the equities in favor of the defendant, the plaintiff has been
remitted to an action of law for his damages.4 Moreover, the court in

a dictum in a 1954 case strongly disapproved the use of the conditional

or alternative injunction as a means of awarding damages in equity in
lieu of injunctive relief.8 This may well be the equivalent of deny-

ing the complainant any relief, since, following an expensive defeat

on the equity side of the court, most plaintiffs will be very reluctant

to begin a new and costly suit on the law side of the court for what

may well De a rather small damage award. The approach of the United

States Supreme Court in allowing the plaintiff the alternative of

obtaining his damages in equity is seemingly better suited to the

accomplishment of justice in the individual case, but is not likely to

be followed in view of existing Florida precedents in the absence of

a legislative mandate to the courts.

Actions at law for damages. The measure of damages in an action

at law for interference with rights to the use of water has apparently

not been litigated in Florida, although a few cases were found where
429 430
damages were sought for flooding or pollution. In the oneflooding
case in which the measure of damages was discussed,4 the plaintiff

limited his request to the traditional type damage for past injuries,

loss of a potato crop, and the possibility of obtaining permanent or

capital damages for future as well as past harm was not discussed. The

court applied the same general rules of damages as would apply to loss
of crops from other causes.4

The possibility of a complainant obtaining permanent or capital

damages, which would settle his claim once and for all, for both past

and future injury, is an important one. The right to such capitalized


damages, measured by the difference between the value of the property

before the invasion and its present value in view of the continuing

invasion, has been recognized by the Florida court as the proper rule

of damages in a case where injunctive relief is denied for discretionary

reasons. Thus in one early Florida case where a mandatory injunction

to force the removal of a railroad track from the center of a street

was denied on the ground of laches, the court indicated the proper measure
of damages was damages for the entire injury in one action at law.433

Other Florida cases not involving water rights have recognized the right

to such "entire" damages where no injunction suit had been brought, but

the doctrine of laches would obviously bar such a suit if filed in the

chancery court.34 Other southeastern jurisdictions have recognized

the right to such permanent damages where injury to water rights is by

reason of a structure or condition permanent in nature in a physical

sense, as for example, injury resulting from detaining water through

the construction of a permanent type concrete dam.435 No Florida cases

awarding capital damages for this type of physically permanent injury

were found.

In the absence of permanent injury, be it legally permanent because

injunctive relief is not available, or physically permanent, it may be

questioned whether a court could properly award permanent damages, since

such an award would be the equivalent of a private condemnation proceed-

ing which should not be forced upon a plaintiff without his consent.

In the Florida cases allowing capital damages, the choice has been

with the plaintiff in each case whether he desired to seek such damages

or confire his complaint to damages for past injury, in which case he

would apparently not be precluded from further actions if later injuries

were proved. 436


The Supreme Court of North Carolina has indicated that water rights

controversies may be permanently settled by an award of capital damages
if both parties consent37 and has also held that if the defendant

possesses condemnation powers to do the act complained of, either of

the parties may demand that damages be assessed on a permanent basis

without the consent of the other party.438 No Florida cases have gone

this far, but the North Carolina cases suggest a possible legislative

approach to the permanent settlement of claims of this type, with

resulting security for the rights acquired by the party being sued.

Another damages problem which has not been settled in Florida is

whether a riparian owner who is not making use of the water to which he

is entitled can maintain an action for damages, and if so, what the

measure of those damages will be. A series of Nebraska cases has

indicated that the damages to the riparian owner in such a situation

would be looked upon as nominal or infinitesimal,439 apparently on the

basis that in determining the injury from the water being takes, the

rights of all other riparian non-users would also have to be considered,

and when the lost water was divided among this group, no one would obtain

more than nominal damages.

If the complainant were entitled only to nominal damages,then the

question whether he could maintain an action at all might depend on

whether the jurisdiction took the position that a prescriptive right
began to run upon use of the water,440 in which case the action should

be available to prevent the gaining of such a right, or whether the

prescriptive period begins to run only when actual harm is shown,in

which case the complainant would suffer "damnum absque injuria" and
should not be permitted to recover even nominal damages.441
should not be permitted to recover even nominal damages.


Contrary to the Nebraska position, the North Carolina court, in a

group of cases involving withdrawals for municipal use, has indicated

that the proper measure of damages is the difference between the fair
market value of complainant's riparian land before and after such "taking'

and the court has applied the same rule to the measure of damage caused

by withdrawals of artesian ground waters from adjoining premises for
municipal use.443 It may be noted in passing that the court in these
cases was awarding permanent damages in a situation where the defendant

could have accomplished its taking through eminent domain proceedings.

An additional difficulty not found in equitable proceedings is the

problem of joining independent tortfeasors. In the pollution cases,

where several wrongdoers contribute to the pollution of a stream but

the discharge of any one of them would not be enough to cause injury to

the plaintiff, can he join them in one action at law? He could join

all of these independent tortfeasors in equity if he could maintain a

suit for injunction, but if he sues at law for damages, he may be faced

with the ancient rules against joinder of independent tortfeasors which

will prevent joinder of the parties,444 and in the absence of joinder

he may be unable to prove damages against any one of the tortfeasors

individually. It is perhaps doubtful whether this rule against joinder

of such actions at law would be applied in Florida today in view of the
liberalization of the new rules of pleading,4 but no recent cases

involving attempts at such joinder were found.

Declaratory Judgements and Decrees

Prior to the enactment of declaratory judgement statutes, declaratory

decrees were available in courts of equity in advance of proposed action

only in a very limited group of cases,including construction of express

trusts and quiet title proceedings. Florida was one of the first


American states to adopt a declaratory judgement act extending declaratory
jurisdiction to include a wider range of activities.4 It applied only
to decrees for the construction of instruments in writing, however, and

no cases were found in which it was used as a means of settling water

rights disputes.

In 1943 the Florida legislature enacted a new declaratory judgement

statute patterned after the uniform declaratory judgement act, but giving

the court even broader powers of interpretation than does the uniform
act itself. This Florida act provides not only for the interpretation

of written instruments, but for declaratory decrees, judgements or orders

as to the existence or non-existence: "of any immunity, power, privilege

or right; or of any fact upon which the existence or non-existence of

such immunity, power, privilege or right does or may depend, whether

such immunity, power privilege or right now exists or will arise in the

future."448 It also provides that in addition to such a declaration the

court may also grant "additional, alternative, coercive, subsequent or

supplemental relief in the same action."449

Although the 1943 act greatly broadens the declaratory powers of

the Florida courts, it has seen very little use to date for settlement

of water rights controversies in Florida. Its most valuable use in the

water resources field would seem to be to advise one who plans future

development of his water rights before he takes what possibly may be

illegal action. As was aptly said in the debate on the federal

declaratory judgement act, "Under the present law you take a step in

the dark, and then turn on the light to see if you have stepped into

a hole. Under the declaratory judgement law you turn on the light and

then take the step."450


Nevertheless, in the two instances in which the declaratory judgement
procedure has been used in water rights disputes in Florida, the
plaintiff had already been injured, in both cases by action by the state

road department, and could apparently have sought other relief as

readily as a declaratory decree. The first of these cases452 involved

a request for a declaration as to the right of the state road department

to obstruct navigable waters of Lake Jackson by blockingplaintiff's

access from a small arm of the lake to the lake proper. The court

declared the obstruction to be an infringement on the plaintiff's

riparian rights. It did not indicate what other relief he might be

entitled to. Seemingly a suit for injunctive relief might have been

more effective.

The second case involved a construction of a limitation on declara-

tory relief. The Court had previously refused to entertain a petition

for declaratory relief where the obvious purpose was an attempt to

reverse previous adverse decisions on the very question presented by

the bill, on the ground that declaratory relief could not be used as

a device for reviewing or making collateral attacks upon previous decrees

or judgements; in the case under consideration, decisions that State

lands were liable for their proportionate share of Everglade Drainage

District taxes.453 The case of Fleming v. State Road Department,454

the second case referred to above, involved a request for a declaration

as to the obligation of the state road department to maintain a canal

for which a perpetual easement had been approved in an earlier decision.

Failure to maintain the canal had resulted in flood damage to Fleming's

land. The trial court dismissed the bill on the ground that it was an

attempt to relitigate natters already determined, but the Supreme Court

of Florida approved declaratory relief since the matters presented had


occurred after the determination of the first suit and had not been

decided in that suit. Again, it would seem that if the plaintiff were

entitled to have the canal maintained, a suit for a mandatory injunction

might have been a more direct method of obtaining the desired relief.

As new methods of putting Florida's water resources to beneficial

use are developed, the declaratory judgement or decree may provide a

very valuable method of testing the legality of proposed new uses in

advance of expenditures for such purposes. Thus, if new legislation

should give authority to a state agency to provide for the impounding

of water in watercourses which is excess to riparian needs, or for the

diversion of such water beyond riparian land, the provisions of the

act authorizing construction of such legislation could be called into

play.455 In this connection it is to be noted that the act authorizes

not only interpretation of the legislation itself, but also of the

validity of any "regulation made under statutory authority".456 In

1956 the General Assembly of Virginia, in enacting a bill to provide

for the conservation of flood waters, included authorization to the

courts of the state to approve the erection of impounding structures,

and provided that parties given notice of such suits should be bound

by a decision of the court.457 If any doubt exists concerning the

power of Florida court to make such adjudications under the existing

declaratory judgement act, similar authority could be spelled out in

proposed comprehensive water resources legislation.

In addition to making it possible for one proposing improvements to

obtain a declaration of his rights to make such improvements, the

declaratory judgement procedure may also be useful to one whose riparian

rights may be interfered with by such improvements. He also would be

entitled to a declaratory decree concerning the legality of such pro-

posed works, and, in addition, under the provisions of the act for other

relief, in the same action, could obtain a temporary injunction to

maintain the status quo during the pendency of the declaratory judge-
ment proceedings.


Scientists have long recognized that water moves in what is known

as the hydrologic cycle.459 For example, water may pass through various

stages, beginning as atmospheric water which falls to earth as precipa-

tion, flows over land as diffused surface water, runs into surface water-

courses, is stored in lakes and ponds, percolates into ground water

supply, slowly moves into the ocean and becomes tidal water. Finally,

evaporation from the land and ocean combined with transpiration will

S continue the cycle.

The historical development of different legal rules for different

"types" of water reveals that the law has been slow to recognize the

interrelationships between what was considered different categories of

water. The common law460 recognized four general categories of water

passing over or through lands: (1) -:urface water moving in a natural

watercourse;461 (2) diffused surface water;462 (3) ground water in

distinct underground streams;4 and (4) "Percolating" ground water.464

The Florida Court has expressly recognized these separate categories

and also that separate classes of rights attach to the separate
categories. Therefore, in order to present a comprehensive survey
of Florida water law, it was found necessary to conform in general to

the established categories.


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