Title: Opinion File 69-6 thru 69-7
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Permanent Link: http://ufdc.ufl.edu/WL00003279/00001
 Material Information
Title: Opinion File 69-6 thru 69-7
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 69-6 thru 69-7
General Note: Box 14, Folder 2 ( Opinion File 1961-1971 - 1961-1971 ), Item 67
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003279
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.

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MEMO TO : MGG

RE : Your memo of 10 April 1969 in which ou asked
the following question If we build a dam
cutting off the propertyowner's riparian
rights to navigation to the Gulf, does
the property owner have any right of damages
against SWFWMD?

CONCLUSION: The property owner does not have any right of
damages against SWFWMD.

REASONING : Carmazi v Board of County Commissioners of Dade
County, 108 So 2d 318 (1959), was a suit to adjudicate
property rights and to recover for damage to riparian land as a
result of construction of a proposed dam on a navigable stream by
the Central and South Florida Flood Control District. This
case held that the owners of the land abutted on the navigable
stream above the site of the proposed dam were not entitled
to compensation for loss of access by boat to adjacent bay
and other connecting navigable waters. The Court said that the
alleged property rights that the landowners were seeking to
protect is the right of passing by boat from their property to
the adjacent waters of Biscayne Bay. They said the question
is whether or not this right of navigation which the property
owners now enjoy is a property right which is within the
purview of the constitutional protection. They said it was
not.

Central and Southern Florida Flood Control
District v Griffith, 119 So 2d 423 (1960), was another case
involving a dam across a canal. The Court stated that here
they had reparian owners who contend that their right of
navigation is being jeopardized. They then quote from the
Carmazi case, and conclude that the property owners had not r
shown any loss of property or impairment of a property right.

C. C. Moore v State Road Department, 171 So 2d
25 (1965), certiorari denied by Supreme Court in 177 So 2d
475, discusses Webb v Giddens, 82 So 2d 473 and the Carmazi
case. In the Webb case a landowner abutting a small arm of
Lake Jacksoni had been cut off from the remainder of the lake
by a fill across the arm. The Court held that the landowner
had been denied access to the main body of the lake. In the
Moore case the Court said that the distinction between the Webb
case and the Carmazi case is that in Webb access to the main
body of the water was not preserved, while in the Carmazi
case access to the main body of the river was not impaired,
and the only rights infringed were right of navigation.




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These cases indicate that if the proposed
dam does not cut the riparian owner off from the main body
of the water he is riparian to and that the water way the
dam is constructed upon is not a private navigable water way
owned by the landowner then the right of navigation is not
subject to compensation.

The Court in the Griffith case pointed out
that if the construction of the proposed dam should flood
the landowner's property or otherwise cause a special injury
in the use and enjoyment of the riparian lands, the landowner
might still have appropriate relief depending upon the
circumstances and the nature of the injury. However, in the
same case the Court pointed out that a right of navigation
effects the public as a whole and that eminent domain statutes
protect only: private rights, and not rights which accrue to
the public as a whole.

State v T.O.L., Inc., 206 So 2d 69 (1968),
stated it is well recognized that governmental functions,
although they may deprive private interest of certain privileges,
are justified as a necessary exercise of the police power for
the benefit of all the public. In such cases, the rights of
those effected must give way to the benefits which accrue to
the public as a whole.

In view of the Carmazi and the Griffith cases,
which are closely aligned to the situation presented in the
question, and the statement of the constitutional principle in
the T.O.L., Inc., case, I feel the property owner would not have
any right of damages against SWFWMD.





AFD:cs


4/12/69


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