Title: The Legal Effect of Flooding Resulting From Raising Water Levels
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Title: The Legal Effect of Flooding Resulting From Raising Water Levels
Physical Description: Book
Language: English
Publisher: Frank E. Maloney, Attorney At Law
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - The Legal Effect of Flooding Resulting From Raising Water Levels
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003023
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II. THE LEGAL EFFECT OF FLOODING RESULTING FROM RAISING WATER LEVELS

The Taking Issue

Local governments have two major powers of significance to this

discussion. One, the power of eminent domain, is the right to seize

property and place it in public ownership. Constitutional limitations

on this power require that the seizure be for a "public purpose" and

that "just compensation" be paid its owner.

Another is the police power, which is the power of government to

take action itself or to regulate the actions of others for the purpose

of protecting the public health, safety, morals or welfare. Exercise of

the police power is also subject to constitutional limitations. Citizens

are protected by the constitutional right to due process of law against

government action pursuant to the police power that is unreasonable,

arbitrary, capricious or discriminatory. However, if an exercise of the

police power is reasonably related to attainment of a legitimate purpose,

it is valid. Furthermore, there is a judicial presumption of validity.

The "taking issue" arises when an owner of property claims that a

government action has had the practical effect of appropriating his

property for the public's benefit. In essence, the owner asserts there

has been an exercise of the power of eminent domain, but without payment

of compensation. Such action is sometimes referred to as a "taking."

A taking can occur in one of two ways: (1) the government may

physically invade private property or otherwise interfere with the use

of it to such an extent that the owner is, in effect, ousted. See, e.g.,

Pumpelly v. Green Bay Co., 80 U.S. 166 (Wal. 1871); City of Jacksonville v.

Schumann, 199 So. 2d 727 (Fla. 1st D.C.A. 1967); (2) regulations enacted

under the police power may interfere with the owner's use of the property


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to such an extent as to be the equivalent of an appropriation of the

property for the public's benefit. See, e.g., Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922).

If a court finds that government action is causing a taking of

private property, it has two available courses of action. First, it

may enjoin or invalidate the action, thereby removing the burden from

the landowner. Town of Bay Harbor Island v. Schlapik, 57 So. 2d 855, 857

(Fla. 1952). Alternatively, it may order the institution of eminent

domain proceedings to compensate the owner for the property that has been

taken. City of Jacksonville v. Schumann, supra. But see discussion of

Chapter 78-85, Florida Statutes, infra at page 88.



Analysis of Flooding Cases



Federal Decisions

Early decisions by the United States Supreme Court were primarily

concerned with determining whether any compensation was due because

of flooding. The case of Pumpelly v. Green Bay Co., 80 U.S. 166 (Wal.

1871) established liability in the government for destroying the value

of certain property by raising water levels above their natural level.

The Green Bay and Mississippi Canal Company had built a dam, pursuant

to authorization from the State of Wisconsin, across a navigable river.

[T]he waters of the lake were raised so high as to
forcibly and with violence overflow all his said
land, from the time of the completion of the dam
in 1861 to the commencement of this suit; the
water coming with such a violence, the declaration
averred, as to tear up his trees and grass by the
roots, and wash them with his hay by tons away, to
choke up his drains and fill up his ditches, to
saturate some of his lands with water, and to dirty


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and injure other parts by bringing and leaving on
them deposits of sand.... Id., at 167.

Accepting these facts as true, the Supreme Court held that "where

real estate is actually invaded by super-induced additions of water ...

so as to effectually destroy or impair its usefulness, it is a taking."

Id. at 181.

The case of U.S. v. Lynah, 188 U.S. 445 (1902) subsequently reinforced

that principle. The U.S. government had built dams and other obstructions

in the Savannah River, hindering its natural flow and causing it to.be

elevated above its natural height, thus flooding a rice plantation owned

by the plaintiffs. Id. at 447, 449. The land had been drained and

cultivated for 70 years. It was separated from the river by an embankment.

There was a trunk through the embankment about 1 foot above the mean low

water mark. The land was flooded by opening gates at high water and

drained by opening gates at low water. It was essential that the outlet

be above the mean low water mark. Id. at 448. The government's obstruc-

tions' of the river kept the point of mean low water above its natural

point, causing a "super induced addition of water in the plantation" of

about 18 inches.

The government contended that since, in its natural condition, the

land was subject to overflow between the low and high water marks, raising

the water level only took away the possibility of drainage. The court

ruled, however, that by raising the water above its natural level the land

was flooded and thereby rendered unfit for cultivation. A taking, there-

fore, had occurred.

Although in Pumpelly and Lynah the flooding was continuous and

virtually a total destruction of property value was claimed, it is clear


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from the case of United States v. Cress, 243 U.S. 316 (1917), that a

lesser injury may constitute the taking of at least a partial interest.

In Cress, the government had constructed a dam on a navigable river which

raised its level above natural levels, causing the land of one plaintiff

to be "subject to frequent overflows of water from the river" and thereby

depreciating its value by one half. Id., at 327. The court ruled that

although a taking of less than the entire fee had occurred, the owner had

to be compensated. Id. at 328.

"[I]t is the character of the invasion, not the amount of damage

resulting from it, so long as the damage is substantial, that determines

the question whether it is a taking." Id. Therefore, when land is

intermittently flooded by waters above their natural levels, which would

not have been flooded under natural conditions, and a substantial inter-

ference with the use of the land results, such flooding may constitute

the taking of an interest in the land for which compensation must be paid.

There are two distinctions of importance between the Pumpelly, Lynah

and Cress cases and the Golden Gate Estates situation. The first is that

water levels were raised above their natural levels in those cases, where-

as it is proposed in the Golden Gate Estates to raise the water level to a

S point somewhat below their natural level before development of the canal

system. The second distinction is that, whereas in Pumpelly, Lynah and

Cress the flooding caused by the government substantially interfered with

existing uses of the land, it may be argued that the usefulness of the

affected Golden Gate Estates property would not be so substantially injured

because it is already subject to a high degree of flooding.

The importance of this latter distinction has been recognized by the

U.S. Supreme Court in Sanguinetti v. U.S., 264 U.S. 146 (1924). In


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A case from the Northern District of Alabama, decided prior to

Sanguinetti, is similarly helpful. In Coleman v. U.S., 181 F. 599 (1910),

the Government built a dam across the Coosa River. The plaintiffs owned

land upstream from the dam that they claimed had been taken by inundation.

The court found, however, that,

injury to both timber and crops from overflows was
occurring frequently, if not annually, before any
dam was built. The value of the lands for both
purposes was diminished and impaired by the existence
of such overflows and the likelihood of their re-
currence each year, even before the dam was built.
It will not be contended that these prior conditions
amounted to an ouster of plaintiffs from their
property or to a practical destruction of its value.
The effect of the dam was merely to increase the
likelihood and extent of similar overflows and the
damage resulting therefrom, and thereby impair the
value of plaintiff's property for cultivation to a
greater extent. Id. at 603-604.

Such facts were held insufficient to show a taking.

Most, if not all, of the land in Golden Gate Estates that would be

affected by the proposed plan is already subject to some degree of flooding.

The intermediate height weirs would prolong the duration of flooding for an

additional month. Raising weirs to ground level would prolong flooding an

additional week or two and would subject additional areas to a somewhat

higher incidence of flooding. Since the usefulness and hence the market

value of the land is already affected by flooding, it may be argued that

some additional flooding would not seriously impair its present value.

For example, a person planning to build a house in G.G.E. under current

conditions and regulations would presumably have to elevate the structure

and septic tank drainfields. No additional elevation would be necessary

if water was retained on the land an additional month. Some additional

elevation might be necessary, depending upon elevation, if the incidence

of flooding is increased. A strong argument could be made, based on the

preceding cases, that in neither circumstances would the additional flooding,


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alone, destroy the usefulness of the property or substantially diminish

its value to the extent that it constitutes a taking.

Two cases which contradict this line of reasoning must be mentioned,

however. The first is Jacobs v. United States, 45 F.2d 34 (5th Cir. 1930),

rev'd on other grounds, 290 U.S. 13 (1933). The plaintiff in Jacobs owned

land which had been affected by a dam on the Tennessee River. Prior to

construction of the dam, government engineers offered to purchase a flowage

easement from the plaintiff, simultaneously indicating that if the amount

offered was unacceptable his only recourse lay with the courts. He sued

the United States, alleging a taking of his land had occurred.

The trial court determined that,

the dam mentioned slightly increased the height of inter-
mittent rises in the river, that the overflows reaching
appellant's land after the construction of the dam were
not continued, but occasional; that his land which had
been subject to overflow before the dam was built became
slightly more subject to such overflows since its construc-
tion; that appellant's customary use of his land was pre-
vented for short periods of time; and that the use of that
land for agricultural purposes was impaired by the flood
waters after the dam was built. Id. at 37.

The Fifth Circuit held that a taking of the plaintiff's property, to

the extent flooding was increased, had been proven.

[Ilt appears that the burden of the servitude to which, by
reason of intermittent overflows, land of the appellant
was subject before the dam was erected was increased as a
result of the erection of the dam, and that the erection
of the dam had the effect of interrupting appellant's
customary use of his land, and of impairing to some extent
the use of that land for agricultural purposes. As a
riparian owner, appellant had the right to enjoyment of
the natural flow of the river without burden or hindrance
imposed by artificial means, and no public easement beyond
the natural one can arise without grant or dedication, save
by condemnation with appropriate compensation for the pri-
vate right. Id.

Jacobs thus might be used to support the proposition that any

increase in flooding which impairs to any extent an owner's use of his


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_I_ I








land must be compensated. The facts of the case are distinguishable,

however, from what is proposed in Golden Gate Estates because in Jacobs

the Government had raised water levels and increased the incidence of

flooding beyond natural levels and frequency. The same language quoted

above, to the effect that the natural burden of flooding may not be

increased, would also seem to justify a restoration toward the natural

condition within those parameters.

A case following Jacobs is King v. United States, 427 F.2d 767

(Ct. Cl. 1970). Again, the Government had built a dam which subjected

* the plaintiff's farmland to intermittent flooding. Although the land

had always been subject to occasional flooding, floods that had occurred

prior to completion of the dam had been "less frequent and destructive

than comparable flows since completion of the dam." Id. at 768. The

Court stated, 'more pointedly, postdam floods have lingered on the land

much longer than before, a condition ruinous to most growing crops. More-

over, the altered flood pattern has impaired the land itself in places by

scouring the soil, which condition ditching and diking has failed to

prevent." Id. at 769. Because the Court found that, henceforth the

plaintiffs may expect, intermittently but permanently, greater damage to

major portions of their croplands and crops than theretofore," (Id.),

a taking was held to have occurred.



Florida Decisions

Florida cases have generally followed the federal decisions. In

Arundel v. Griffin, 89 Fla. 128, 103 So. 422 (Fla. 1925), the Florida

Supreme Court was asked to determine the sufficiency of a complaint alleging

that the Arundel corporation and the Everglades Drainage District, by negli-


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gently constructing drainage works, had taken the plaintiff's property

by causing it to be overflowed with water. Id. at 422. In their natural

condition, the lands at issue were "peculiarly subject to heavy and

continued overflow in unusual rainfalls." Id. at 424.

The Court held that a taking did not arise under these circum-

stances because, "It does not appear that the plaintiff's property was

physically invaded, or that it was appropriated or permanently overflowed

by the acts complained of." Id. The Court emphasized that only a taking

of property must be compensated under the Constitution. Mere damage,

without compensation, is not expressly forbidden.

The facts in Arundel appear closely analogous to the G.G.E. problem.

Because the plaintiff's land in Arundel was already subject to flooding

and its usefulness was thus impaired, the additional flooding caused by

the works of the E.D.D. merely damaged the property and did not take it.

Another case of importance is State Road Department v. Tharp, 1 So.

2d 868 (Fla. 1941). The facts of Tharp differ significantly from those

of Arundel. In Tharp the plaintiff owned a water mill which had been

operating for more than 70 years. The power of the mill was dependent on

the drop of water from a millpond to its natural level.

When the water left the millrace, it flowed through
a swamp area in five channels. At a point four or
five hundred feet west of the mill, the State Road
Department erected a bridge and fill aggregating
640 feet in length. The fill completely obstructed
four of the channels, the result being to raise the
elevation of the water in the millrace at least
three feet, reducing the capacity of the mill fifty
per cent. Id. at 869.

The Supreme Court of Florida held the power of the stream was property

which the State had effectively destroyed and thus taken. Id. Since the

plaintiff in Tharp had for many years been dropping water to its natural


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level as it left this mill, whereas the plaintiff in Arundel had been

subjected to flooding by water to its natural level, the decisions are

not inconsistent. In Arundel, natural water levels to which the plaintiff

had been subject were not seriously interfered with and there was no

taking. In Tharp, natural levels of water which the plaintiff had been

using for many years and upon which his business was dependent were

raised to his detriment and there was a taking.

There have been no further decisions by the Supreme Court of Florida

on this issue. The District Courts of Appeal, however, have been active.

In Poe v. State Road Department, 127 So. 2d 898 (Fla. 1st D.C.A. 1961),

the plaintiff owned land which he used for truck farming. The defendant

condemned a portion of that land for rebuilding an existing road and

constructing a drainage ditch. The work was apparently accomplished

before condemnation proceedings were complete. In the condemnation pro-

ceedings the plaintiff requested compensation for damages to a ten acre

parcel which he claimed was flooded during wet periods due to the improper

construction.and design of the road and ditch. Compensation for the land

that was taken and for damages to the remainder was awarded. The plaintiff

subsequently brought suit claiming that a taking of his property had

occurred because of the recurring flooding.

It is alleged that by so diverting surface waters from
their natural drainage course a lake covering approximately
ten acres of plaintiff's property is artificially formed
during rainy weather which stands for as much as twenty-
four hours or more before subsiding, thereby greatly
damaging and destroying the land and rendering impossible
its use for truck farming. Appellant alleged that the
action of appellee constitutes an unlawful appropriation
of his land without the payment of compensation, and
prays the court to enter a mandatory injunction ordering
appellee to cease and desist from its unlawful use and
occupancy of plaintiff's land by permitting surface
waters to accumulate thereon, or in the alternative to


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require appellee to condemn an easement over the ten-
acre parcel which is subject to periodic flooding, and
to pay plaintiff just compensation for such easement.
Id. at 899.

The defendant argued that the doctrine of res judicata should bar the

action because damages had already been awarded for the asserted wrong.

The court reasoned that if the injury complained of was in the nature of

consequential damages resulting from the road construction, then it would

have been decided in the condemnation action whether and to what extent

compensation should be awarded and res judicata would bar the new action.

However, if the plaintiff was able to prove sufficient facts to show that

a taking of his property resulted from the flooding, the suit was not

barred by res judicata because that issue had not been considered in the

condemnation proceedings. The court therefore had to determine whether

a taking of private property for public use had occurred. Id. at 900.

The plaintiff testified that,

prior to the reconstruction of the highway and the
installation of the drainage ditch he used the ten-
acre parcel of land in question for truck farming.
He admitted that during heavy rainfalls surface waters
flowing over his remaining lands flooded the particular
parcel in question prior to reconstruction of the high-
way, but this occurred infrequently and was of only
temporary duration. He testified that since the new
highway had been constructed and the drainage ditch
installed the parcel of land in question flooded
after normal rainfall, and stayed covered with water
for such lengths of time as to render it unsuitable
for farming purposes. Id. at 901.

Both the plaintiff and an engineer testified that the flooding was caused

by improper design of the road and ditch.

The court held such facts were insufficient to prove that a taking

of the property, rather than mere damage to it, had occurred.

His evidence failed to establish that appellee had
either physically invaded his property, or that acts


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attributable to appellee had resulted in the permanent
overflowing of his land. In the last analysis, it
clearly appears that the only injury suffered by plain-
tiff is the consequential damages to the remainder of
his property caused by the recurrent flooding of a
thirteen-acre parcel of his land due to the accumulation
of surface waters following heavy rainfall. Id. at 902.

The facts in Poe are more like those of Arundel than of Tharp, thus

justifying the decision. The land, in its natural condition, was already

subject to flooding. The state's action in rebuilding the highway in-

creased the severity of that flooding and damaged the property, but did

not "take" it.

The case of Dudley v. Orange County, 137 So. 2d 859 (Fla. 2d D.C.A.

1962), again emphasized the necessity of showing severe damage to prove a

taking. The plaintiffs in Dudley owned property adjacent to a lake. The

county had constructed temporary dams along the lake during a "natural

disaster" in order to prevent flooding of about 75 families and county

roads. Subsequently, the plaintiffs' homes and businesses within the

area of the dikes were flooded. The county contended that the flooding

would have occurred anyway and that "the damming only increased the degree

of flooding." Id. at 860.

With respect to whether or not the actions of the County
constituted a taking of the property of the plaintiffs
o, for which the payment of just compensation is required
by the Constitution, it would have been necessary for the
court to have found that the flooding was a direct result
of the dams of the County and the flooding must constitute
an actual, permanent invasion of the land, amounting to an
appropriation of, and not merely an injury to, the property.
12 Am. Jur., Eminent Domain, 870; 18 Am. Jur., Eminent
Domain, 1134; and 2 Nichols, Eminent Domain 6.23(3).

The record here does not show a continuous flooding for a
long period of time in order to work an almost complete
destruction of the value of the land in order to destroy
its value entirely, inflicting irreparable and permanent
injury to effect a constructive taking as were the facts
in Pumpelly v. Green Bay & Mississippi Canal Co., 1872,


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13 Wall. 166, 20 L.Ed. 557 Id. at 863.

In Kendry v. State Road Department, 213 So. 2d 23 (Fla. 4th D.C.A.

1968), the court decided that periodically flooding land which had not

previously been subject to any significant degree of flooding constituted

a taking. The case arose, like Poe, from the reconstruction of a road.

When easements for the original road had been granted they specifically

restricted the height of the road to its existing elevation. Id. at 25.

In violation of those restrictions, the defendant raised the elevation of

the road by four or five feet, causing waters to drain from the road and

into the residences of the plaintiffs. Id. The court was then called

upon to judge the sufficiency of a complaint alleging that a taking of

property had occurred. Accepting as true the facts alleged, the court

held there had been a taking. Because the plaintiff claimed the property

was subject to flooding "whenever rains occur,"(Id. at 27)the flooding

was treated as permanent, since "rain is a condition that is reasonably

expected to continually reoccur in the future." Id. Because the complaint

alleged the flooding had "rendered the properties useless for residential

purposes, "it claimed a sufficiently large dimination of property values

to constitute a taking." Id. One fact which undoubtedly was important to

the decision is that apparently the flooding innundated inhabited resi-

dences which were not otherwise subject to any flooding.

Similarly, in Elliott v. Hernando County, 281 So. 2d 395 (Fla. 2d

D.C.A. 1973) the plaintiffs alleged in a complaint that the defendant had

built an elevated road adjacent to their property, yet,

failed to place thereunder culverts or trestles
sufficiently large enough to allow accumulating
rain waters to be discharged in the direction of
its natural flow. As a result of the artificial
construction and diversion of the natural flow of


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the rain waters, appellants' dwelling was greatly
damaged, a portion washed away rendering it unusable
and in an unsanitary condition. The complaint fur-
ther alleged that the real property was ruined to
such an extent that it has amounted to a taking of
appellants' property for the public's benefit. Id.
at 395-396.

Such allegations were held to be sufficient to state a cause of action for

a taking or for damages.

Finally, in the most recent Florida case on the subject, Thompson v.

Nassau County, 343 So. 2d 965 (Fla. 1st D.C.A. 1977), the court held a

complaint sufficient to claim a taking of private property which alleged

that elevation of a road,

has rendered a substantial portion of the plaintiff's
property useless for residential purposes and has
caused and will always cause great amounts of water
from rainstorms to flow upon plaintiff's property
and into the buildings thereon; and that the
overflow of water upon plaintiff's property consti-
tutes an actual permanent invasion of plaintiff's
property .... Id. at 966.



Validity of Reflooding as Police Power Action

None of the previously discussed flooding cases analyzed the issue of

whether a taking had occurred in the same terms that courts usually employ

to analyze an exercise of the police power. Since it was assumed there

was a right not to have water levels raised above natural levels, the only

question for decision was whether the flooding resulted in a taking. In

addition, the previous cases involved construction projects such as dams or

roads which incidentally caused flooding of private property. Water levels

were not raised to abate harm caused by lowered water levels, but were

raised as an incident to reaching some other goal, such as transportation

or improvement of navigation. Since there was no arguable justification


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for raising water levels pursuant to the police power, there was no

need to discuss the issue in those cases.

The proposed Interim Action Program, however, would be implemented

pursuant to the police power to protect the public health, safety and

welfare. Its purpose would be to raise water levels in order to reduce

the harmful impacts that lowered water levels have had. The basic legal

analysis of this program's validity therefore, should arguably follow

the same lines as the analysis of a program to prevent overdrainage in

the first instance.

All property rights are held subject to the government's responsibility

to exercise the police power when necessary for protection of the public

health, safety or welfare. The Supreme Court of Florida has said,

Under the American System of laws and government,
every one is required to so use and enjoy his own
rights as not to injure others in their rights or to
violate any law in force for the preservation of the
general welfare. This principle does not conflict
with the express constitutional right that all persons
have of "acquiring, possessing and protecting property."
All property rights are held and enjoyed subject to the
fair exercise of the state's police power to establish
regulations that are reasonably necessary to secure the
general welfare of the state. Dutton Phosphate Co. v.
Priest, 65 So. 282, 284 (Fla. 1914).

Although exercise of the police power is subject to the constitutional

limitation which prohibits the taking of private property for the public's

benefit without payment of just compensation, a substantial diminution of

property value may be caused without violating this constitutional pro-

hibition. The recent case of Moviematic Industries v. Dade County, 349

So. 2d 667 (Fla. 3d D.C.A. 1977), illustrates the extent to which private

property interests may be diminished when necessary for protection of the

public health, safety or welfare. The plaintiff, Moviematic, owned 1,200


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acres of undeveloped land in western Dade County that had been zoned for

heavy industrial use. In order to protect the Biscayne Aquifer, the

County downzoned the property to a classification that would allow only

one residential unit for every five acres of land. Such low density was

necessary to protect a naturally occurring mat of blue-green algae or

periphyton that helped to filter pollutants from surface and ground waters.

The court held that protection of water supplies and preservation of

the area's ecological balance are valid purposes for exercise of the police

power. Although the property was substantially diminished in value

because of the County's action, it was not rendered valueless. Therefore,

the District Court of Appeal held there was no taking. Since implementa-

tion of the Interim Action Plan is intended to accomplish the same goals

as the downzoning in Moviematic and since a greater decrease in property

values seems unlikely, that case is strong precedent for the validity of

the Plan.

One distinction often made in taking cases is between action which is

designed to secure a benefit for the public and action which is designed

to prevent or abate harm to the public. If government action is intended

to secure for the public a benefit that it does not presently enjoy, then

a court is likely to hold that the affected landowner must be compensated

for the value of property which has been appropriated to the public's use.

On the other hand, if the government takes action which is intended to

prevent or abate an injury or harm to the public interest caused by a use

of land, then depreciation of a landowner's economic interest rarely con-

stitutes a taking. Nichols, Laws of Eminent Domain, 1.42 (Rev. 3d ed. 1976).

There are numerous decisions of the U.S. Supreme Court affirming this

k distinction and upholding exercise of the police power to prevent harm to


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other landowners or the public interest. In Hadacheck v. Los Angeles,

239 U.S. 394 (1915), the petitioner owned land containing a bed of clay

which he used for making bricks. The land was worth about $800,000 for

brick-making purposes, but was virtually useless for any other purpose

because of excavations he had made. Id. at 405. The city passed an

ordinance prohibiting brickmaking which the petitioner claimed was a

taking of his property. The U.S. Supreme Court held that because of

"the effect upon the health and comfort of the community," the city could

prohibit brickmaking under its police powers. Id. at 411.

Similarly, in Northeast Laundryv. City of Des Moines, 239 U.S. 486

(1916), the Court upheld an ordinance prohibiting uses of property which

might emit smoke. In Denver and Rio Grande R.R. Co. v. City of Denver,

250 U.S. 241, 144 (1919), the constitutionality of an ordinance which

required the removal of railroad tracks from a busy intersection was

upheld because it was "reasonably necessary to protect public safety."

The case of Miller v. Schoene, 276 U.S. 272 (1928) further illustrates

the extent of police power authority. Virginia had passed a statute

requiring the destruction of red cedar trees that were found to be

infected with cedar rust. Although cedar rust is not harmful to cedar

trees, it may be transported on the wind to apple trees on which it destroys

the fruit and foliage. The plaintiff in Miller owned cedar trees which

were destroyed pursuant to the statute. He claimed they had been taken

without compensation. The court first noted the relative economic

importance of apple orchards and ornamental cedar trees. In effect, the

state had been forced to choose between the preservation of one or the

Other. The exercise of such a choice, the court held, does not constitute

a taking.


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When forced to such a choice the state does not
exceed its constitutional powers by deciding upon
the destruction of one class of property in order
to save another which, in the judgment of the
legislature, is of greater value to the public.
It will not do to say that the case is merely one
of a conflict of two private interests and that the
misfortune of apple growers may not be shifted to
cedar owners by ordering the destruction of their
property; for it is obvious that there may be, and
that here there is, a preponderant public concern
in the preservation of the one interest over the
other .... And where the public interest is in-
volved preferment of that interest over the property
interest of the individual, to the extent even of
its destruction, is one of the distinguishing charac-
teristics of every exercise of the police power which
affects property .... We need not weigh with nicety
the question whether the infected cedars constitute
a nuisance according to the common law; or whether
they may be so declared by statute .... For where,
as here, the choice is unavoidable, we cannot say
that its exercise, controlled by considerations of
social policy which are not unreasonable, involves
any denial of due process. Id. at 279-280 [foot-
notes omitted].

In Goldblatt v. Town of Hempstead, 369 U.S. 590 (1961), appellants

had been mining sand and gravel for many years prior to passage of an

ordinance prohibiting further excavations below the water table and

requiring existing excavations below that level to be filled. At issue

was the constitutionality of the prohibition, which appellants claimed

had rendered their property useless and thus constituted a taking. The

Court ruled the prohibition was a valid exercise of the police power,

quoting from the case of Mugler v. Kansas, 123 U.S. 623 (1887).

A prohibition simply upon the use of property for
purposes that are declared, by valid legislation,
to be injurious to the health, morals or safety
of the community, cannot, in any just sense, be
deemed a taking or an appropriation of property
for the public benefit. Such legislation does
not disturb the owner in the control or use of
his property for lawful purposes, nor restrict his
right to dispose of it, but is only a declaration
by the State that its use by any one, for certain
forbidden purposes, is prejudicial to the public


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L~ ~_ ~I _









interests .... The power which the States have of
prohibiting such use by individuals of their pro-
perty as will be prejudicial to the health, the
morals, or the safety of the public, is not and,
consistently with the existence and safety of
organized society, cannot be burdened with the
condition that the State must compensate such in-
dividual owners for pecuniary losses they may sus-
tain, by reason of their not being permitted, by a
noxious use of their property, to inflict injury upon
the community. Id. at 593.

With regard to the diminution in value, the Court stated, "Although a

comparison of values before and after is relevant ... it is by no means

conclusive." Id. at 594.

Although the validity of requiring the excavation to be refilled

was not decided in Goldblatt, a California court ruled on that issue in

the case of People v. Greene, 264 Cal. App. 2d 774, 70 Cal. Rptr. 818

(1968). The ordinance in question required landowners to take corrective

action whenever, "any existing excavation or fill has, from any cause,

become a menace to life or limb, or endangers public or private property,

or affects the safety, usability or stability of a public way." Id. at 819.

The defendant was arrested for failing to fill an excavation on his pro-

perty and attacked the constitutionality of the ordinance. The court

upheld the enactment.

It is now well-established that a landowner may be
compelled,to make his property safe. He may be re-
quired to fence an excavation, to cover a hole, to
cut down trees which endanger the public, to clear
brush from his property and thereby reduce the fire
hazard.. He may even be required to clear weeds and
unsightly growth from his property, not only to re-
duce the fire hazard and to foster public health,
but to preserve the attractiveness of the neighbor-
hood and prevent the spread of unwanted growth ....

He pay be required to change the drajiage on his
property to accommodate the welfare of his neighbors ....

If the day ever existed when a landowner could permit


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_









his property to remain in a dangerous condition in
defiance of the public authorities, that day has
passed ....

Such an order falls within the general police power
to abate a nuisance. By a series of physical acts
destructive of the nuisance, the land is restored to
the physical state it was in before the nuisancecame
into being. Although affirmative acts to remedy the
condition of the land may be required, their ordering
is an exercise of the police power which directly pro-
motes an essential task of government, protection of
the public from a threat to its health and safety ....
Id. at 820-821 [Footnotes omitted and emphasis added.

Florida courts have agreed with these principles. In Adams v.

Housing Authority of City of Daytona Beach, 60 So. 2d 663 (Fla. 1952),

the Court indicated that a city could "order the discontinuance of the

occupation of houses which are unsafe, unsanitary, or breeding grounds

for disease." Id. at 666. See also Pompano Horse Club v. State, 93

Fla. 415, 111 So. 801 (Fla. 1927) (injunction issued against main-

tenance of gambling establishment).

Where necessary to protect the public's health, safety or morals,

the Florida Supreme Court has even allowed the destruction of private

property. In Pasterneck v. Bennett, 190 So. 56 (Fla. 1939), a seizure

of slot machines was held not to be a taking. In State Plant Board v.

Smith, 110 So. 2d 401 (Fla. 1959), the legislature had authorized

government agents to enter citrus groves, and destroy trees infected

with burrowing nematodes. One affected grove owner sued the agency

claiming his property had been taken and he was therefore entitled to

compensation. The Court held that no taking occurred by the destruction

of infected trees that had begun to decline, and said,

There is a very clear distinction between an appro-
priation of private property to a public use in the
exercise of the power of eminent domain, and the
regulation of the use of property and its destruction,


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I.


if necessary in the exercise of the police power.
"Under the power of eminent domain the sovereign may
make a compulsory purchase of the property of the
citizen when such property is to be appropriated to a
public purpose or use, but such compulsory purchase, or
taking as it is called, cannot be made even by the
sovereign 'without just compensation'." Moody v.
Jacksonville, T. & K. W.R. Co. 1884, 20 Fla. 597, 606.
Or, stated differently, in the exercise of the power
of eminent domain the sovereign "compels the dedication
of the property, or some interest therein, to a public
use, or, if already dedicated to one public use, then
to another." State ex rel. Lamar v. Jacksonville Terminal
Co., 1900, 41 Fla. 377, 27 So. 255, 237. See also Adams
v. Housing Authority of City of Daytona Beach, Fla. 1952,
60 So. 2d 663.


On the other hand, the police power is exercised by the
sovereign to promote the health, morals and safety of
the community, Adams v. Housing Authority, supra; it
rests "upon the fundamental principle that every one
shall so use his own as not to wrong or injure another."
Mugler v. State of Kansas, 123 U.S. 623, 661, 667, 8 S. Ct.
273, 300, 31 L.Ed. 205, quoted in Pensacola & A.R. Co. v.
State, 1889, 25 Fla. 310, 5 So. 883, 3 L.R.A. 661. "'To
destroy property because it is a public nuisance is not to
appropriate it to public use, but to prevent any use of it
by the owner, and to put an end to its existence, because
it could not be used consistently with the maxim, sic utere
tuo ut alienum non laedas.'" Bowman v. Virginia State En-
tomologist, 1920, 128 Va. 351, 105 S.E. 141, 145, 12 A.L.R.
1121, quoting 1 Lewis on Eminent Domain, 3d ed. 247. Id.
at 404-405.

However, the destruction of healthy trees and trees which had not begun to

decline was required to be compensated.

A similar challenge was raised in Conner v. Carlton, 223 So. 2d 324

(Fla. 1969), against a law authorizing the seizure and destruction by

government agents of cattle infected with brucellosis. Brucellosis

causes abortions in cows and is communicable to people. Because the

control of brucellosis is a subject of such "compelling public interest,"

the Court held an uncompensated destruction of animals believed to carry

the disease was allowable despite the fact that they were monetarily

valuable. Id. at 328.


L


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_ _









It appears, then, there is ample precedent for allowing a government

to use its police powers to abate conditions which are harmful to other

landowners and to the public's important interests. The police power may

be exercised for such purposes even when it results in monetary losses to

private property owners.

Although in many of the cases discussed above, the prohibited or

abated use of land was one which at common law might be classified as a

nuisance, the police power is not limited to abating nuisances. See

Miller v. Schoene, supra at 280. As the values of society and our con-

ception of what is harmful change, the scope of authority under the

police power changes also. Moviematic, supra. The police power is

flexible and is not limited to preventing or remedying harms that were

recognized as such in previous eras. In the case of Euclid v. Ambler,

272 U.S. 365 (1926), which first recognized the legitimacy of zoning, the

U.S. Supreme Court made this clear when it said,

Regulations, the wisdom, necessity and validity of which,
as applied to existing conditions, are so apparent that
they are now uniformly sustained, a century ago, or even
half a century ago, probably would have been rejected as
arbitrary and oppressive. Such regulations are sustain-
ed, under the complex conditions of our day, for reasons
analogous to those which justify traffic regulations,
which, before the advent of automobiles and rapid transit
street railways, would have been condemned as fatally
arbitrary and unreasonable. And in this there is no
inconsistency, for, while the meaning of constitutional
guaranties never varies, the scope of their application
must expand or contract to meet the new and different
conditions which are constantly coming within the field
of their operation. In a changing world it is impossible
that it should be otherwise. Id. at 118.

The Supreme Court of California has also said,

fT]he police power, as such, is not confined within the
narrow circumscription of precedents, resting upon past
conditions, which do not cover and control present day
conditions obviously calling for revised regulations to
promote the health, safety, morals, or general welfare


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_ _









of the public; that is to say, as a commonwealth develops
politically, economically, and socially, the police power
likewise develops, within reason, to meet the changed and
changing conditions. What was at one time regarded as an
improper exercise of the police power may now, because of
changed living conditions, be recognized as a legitimate
exercise of that power ....
Thus it is apparent that the police power is not a cir-
cumscribed prerogative, but is elastic and, in keeping
with the growth of knowledge and the belief in the popular
mind of the need for its application, capable of expansion
to meet existing conditions of modern life and thereby keep
pace with the social, economic, moral, and intellectual
evolution of the'human race. In brief, "there is nothing
known to the law that keeps more in step with human progress
than does the exercise of this power ...." Miller v. Board
of Public Works of City of Los Angeles, 195 Cal. 447, 484-
485, 234 P. 381 (1925).

The canals of Golden Gate Estates are having demonstrable adverse

impacts on private land use and important public interests. Since the

proposed Interim Action Program is reasonably adapted to reducing these

harmful impacts, a strong argument can be made that it lies within the

scope of permissible police power action.

Again, however, it must be recognized that the law is not settled

on this point. A court might conclude the proposed Interim Action

Program places such an inordinate burden on private property owners that

they should be compensated. It is likely the question will be resolved

by a court balancing the need for an exercise of the police power versus

the magnitude of the burden imposed on private property interests. See,

e.g., Town of Bay Harbor Islands v. Schlapik, 57 So. 2d 855 (Fla. 1952).

Therefore, if litigation develops, it is critically important that the

adverse impacts of the present canal system be fully explained and proven

to the court. Detailed testimony by the most highly qualified experts

will be necessary for success. See F. Bosselman, D. Callies and J. Banta,

The Taking Issue 284-293 (1973).


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Conclusion

It seems clear from an examination of the flooding cases decided by

federal and Florida courts that government action which results in the

flooding of land may constitute the taking of an interest in that land if

the following factors are present:

(1) water levels have been raised above their natural levels;

(2) land was flooded that was not normally subject to flooding

under natural conditions; and

(3) the flooding substantially interfered with an existing use

of the land.

However, it is impossible to state with certainty whether or not

flooding caused by government that does not meet these criteria would be

a taking. The two alternatives of the Interim Action Program seem to be

distinguishable on each point. Neither alternative would raise water

levels above the natural flood levels to which the land had been subject

for centuries prior to excavation of the canals. The intermediate level

alternative would not raise the levels of existing flooding at all. It

would merely extend their duration for a month. The ground level

alternative would extend the duration of flooding and raise peak flood

levels an additional one or two feet above the level they would reach,

under the same condition of rainfall and existing water, with the canals

unaltered. Since it may be assumed the land is presently subject to

flooding from heavy rainfall, one may describe the effect of the ground

level alternative as increasing the incidence of flooding, to an

apparently unknown extent.

The following arguments could be made, based on the previously dis-

cussed cases, in favor of the proposition that implementation of the


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LF










Interim Action Program would not cause a taking:

(1) The cases indicate there is a right to be free from

government-caused flooding only if water levels are

raised above their natural levels. Neither alternative

of the Interim Action Program would raise water levels

above their natural level. Therefore, no right of

property owners would be injured.

(2) Even if it is assumed that landowners have a right to the

present water levels as artificially lowered by

the canals, the Interim Action Program would cause in-

sufficient harm to constitute a taking since the land is

already subject to a substantial incidence of flooding.

Collier County would be liable for a taking rather than

mere damages only if the increment by which water levels

are raised interferes with an owner's use of property to

such an extent that its value is substantially diminished

to the point of being appropriated. Since the affected

land is presently subject to flooding and its use is

thereby naturally impaired, some additional or increased

incidence or duration of flooding would not result in such

an appropriation.

(3) Raising water levels is a legitimate exercise of the police

power that is necessary to protect the public health and

welfare from the damages caused by the present drainage

system. Although property values might be diminished and

the use of property interfered with, the extent would not be

sufficient to constitute a taking in view of the necessity of


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police power action under the circumstances.

Those who are responsible for making the ultimate decision in this

situation should bear in mind, however, that there is no authority directly

supporting the validity of reflooding. If water levels are raised in

Golden Gate Estates it is possible that a court would rule that an

interest in the affected property had been taken and the County must pay

compensation for it. The legal staff of the South Florida Water Manage-

ment District has argued that a reflooding of lands in the former flood-

plain of the Kissimmee River (now C-38) would necessitate compensation.

(Letter from Stephen Walker and Robert Grafton to Curry Hutchinson,

Division of State Planning, August 22, 1975). The precise issue is un-

decided. No unit of government has ever, to our knowledge, recognized

the harm caused by drainage works such as those of Golden Gate Estates

and sought to correct the problem. Therefore, no cases have been

decided on the validity of a partial restoration such as the one proposed.



























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Sanguinetti the Court was presented with a factual situation which more

closely approximates the situation in Golden Gate Estates than did those

of the previously discussed cases. The plaintiff owned land in California

situated between two rivers. The land had "always been subject to

inundation by overflow therefrom, as well as by reason of periodic heavy

rainfall." Id. The government constructed a connecting canal between

the two streams. The excavated fill was put on the lower side of the

canal, forming a levee. The engineers did not intend for the fill to act

as a dam and calculated the canal had sufficient capacity to carry away

flood waters. Apparently they miscalculated, because the land subsequently

flooded almost every year. Nevertheless, the Supreme Court held there was

no taking.

The test used by the court was as follows:

[I]n order to create an enforceable liability against
the government, it is, at least, necessary that the
overflow be the direct result of the structure, and
constitute an actual, permanent invasion of the land,
amounting to an appropriation of and not merely an
injury to the property. Id. at 149.

The test was not met for several reasons. First, the land was subject

to flooding prior to construction of the canal. At most, the canal merely

increased the flooding to some extent. Second, the plaintiff's customary

use of the land was not seriously interfered with and the extent of any

permanent impairment of value was not shown. Third, the plaintiff failed

to show the flooding was caused by the structure. Fourth, the flooding

was not intentional. "The most that can be said is that there was probably

some increased flooding due to the canal and that a greater injury may

have resulted than otherwise would have been the case." Id. at 150. A

taking, therefore, was not proven.


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