jG. E. DAIL, JR., Executive Director
CENTRAL AND SOUTHERN FLORIDA
P. O. BOX 1671
WEST PALM BEACH, FLORIDA 33402
RILEY S. MILES, KISSIMMEE
SR. L. SEARLE, CORAL GABLES
T. R. TOMLINSON, MELBOURNE
C. A. THOMAS, LAKE HARBOR
ROBERT W. PADRICK, FORT PIERCE
IN REPLY REFER TOi
6-104 November 16, 1966
Mr. Dale Twachtmann, Executive Director j -3 g '
Southwest Florida Water Management District V 17 1966
P. 0. Box 216 /
Brooksville, Florida 33512
Dear Dale: i
Since it is unlikely that the Attorney General furnished you with a copy of
the enclosed opinion, I am taking the liberty of doing so since I furnished
you with a copy of our original request for an opinion in a matter in which
you are also concerned.
It goes without saying that we are disappointed in the opinion rendered, and
as a matter of fact have serious disagreement with it since it will completely
mess up our land acquisition plans in the Upper St. Johns.
I will appreciate it if you or Myron will go over this and offer any suggestions
that you may have.
G. E. DAIL, JR.
-' STATE OF FLORIDA
OFFICE OF THE
ATTORNEY GENERAL R"C ,
EARL FAIRCLOTH November 14, 1966 o/ 1986
ATTORNEY GENERAL CENT-RAL AN
FLOOR CONTROL DISFLORICDA
Mr. G. E. Dail, Jr. Iabr
Executive Director *
Central and Southern Florida ElMD
Flood Control District
P. O. Box 1671 NOV 1713 0
West Palm Beach, Florida 33402
Dear Mr. Dail:
You have presented for my opinion the follow e
questions in your letter of October 26, 1966:
(1) Does the wording of the 1967 Appropriation
Act of the Legislature of the State of Florida,
with reference to the moneys appropriated for
Central and Southern Florida Flood Control District
out of the Water Resources Account prevent the use
of a portion of said funds for acquisition of water
r flowage and/or storage easements on lands in the
St. Johns River Basin?
(2) May funds from the "Contribution to Water
Resources Development Projects" account be used
to mitigate damages which would result from
impoundment and storage of water, in instances
where mitigation of damage would be cheaper than
purchases of land rights in the St. Johns Reservoir?
As to Question 1, this in essence is whether or not funds
marked in the General Appropriation Act of 1967 for "Land Acquisition"
may be used to acquire easements for water storage.
In my opinion, a strict construction of this item would
restrict its use to acquiring some interest in land. This would
mean in ordinary usage to acquire the whole or some part of the title
to laid. It would not mean to acquire the use of land.
An easement is a right to use another's land for special
purposes not inconsistent with the general property interest which
the landowner retains. 2 Thompson on Real Property, page 2. An
easement is an interest in land which could be created only by grant,
evidenced by provision therefore in a deed, or it may be inferred or
Mr. G. E. Dail, Jr.
established by other means not pertinent here. Winthrop vs.
Wadsworth, Fla., 42 So. 2d 541.
The owner of the fee cannot also own a private easement
in the same property superimposed upon his fee. Winthrop vs.
From the above and from additional material in the
discussion of easements in general in Thompson on Real Property,
I must conclude that an easement gives no interest in the land
itself. Appropriation acts being required to be strictly construed,
it is my opinion that funds earmarked by the legislature for "Land
Acquisition" may not be used for acquiring a mere use of land.
Your first question accordingly is answered in the negative.
In your second question, as I understand it, you
are asking if funds appropriated as "Contribution to Water Resources
Development Projects" may be used to mitigate damages from flooding,
instead of actually acquiring flooding rights to the land involved,
it being understood that such flooding may require the raising of
Sthe level of certain roads and of private dwellings and other
buildings. Such, you advise, would be cheaper than buying the
Again referring to the exact wording of the 1965 appropriat-
ions act, I note under the heading "Contribution to Water Resources
Development Project" for the Central and Southern Florida Flood
Control District, funds provided for "Land Acquisition" and for
"Construction Matching" and"Bridge Construction".
The common meaning of the word "acquisition" is to get
permanent possession of the subject, in this case, land. This being
the intent of the legislature in using such wordage, it is my opinion
that such intent would not be satisfied by using these funds for
another purpose, no matter how praiseworthy the result.
Accordingly, I answer your second question in the negative.