Title: Opinion File 78-5 thru 78-8
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Permanent Link: http://ufdc.ufl.edu/WL00003524/00001
 Material Information
Title: Opinion File 78-5 thru 78-8
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 78-5 thru 78-8
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 76
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003524
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

78-5
KEY WORDS:


TO: LMB -

FROM: MHG

DATE: MARCH 16, 1978

RE: FLORIDA STATUTE 373; INTERFERENCE Ni- Ve-'- AIl


Collected in 29 ALR 2d 1354(8) is a rundown on some cases in
which interference has been actionable and some cases in
which interference has not been actionable. I realize this
is not what you requested, and that you specifically asked
not to be shown cases in which interference was considered
actionable and not actionable. I realize the assignment was
to determine what interference was, provide a definition for
it or give examples of interference. However, this does not
seem to be a subject on which much has been written other than
in Webster's, Black's Law Dictionary and CJS.

This assignment began as a search for cases that had
interpreted the word interference as used in conjunction with
Florida Statute 373. When no cases were found thereunder the
assignment was altered to find cases that defined the word
interference in Florida. The results of this were orally
discussed. The assignment was then altered to include a
search for a definition of interference by searching the
Reporters of the United States. Then the assignment became
to find a definition of interference in tort law, contract
law or anywhere else it may appear. Then late yesterday after-
noon the assignment became what does interference mean with
respect to water rights. As stated above, I do not know of
any other way other than the dictionaries and cases in which
to define the word interference. If this paper is not satis-
factory, I would appreciate a written assignment of the question
to be answered; may I suggest the form Rob Williams recently
used in assigning to me the imposter doctrine as it applied
to the Carrollwood State Bank case.


MHG/gw










TO: LMB


FROM: MHG

DATE: MARCH 16, 1978

RE: FLORIDA STATUTE 373; INTERFERENCE


The word interference or its near equivalent of impair, or
the like, has been used in the following situations.

Interference occurs between wells when the cones of depression
overlap. Maloney, Plager, Baldwin; Water Law and Administration
(1968) at p. 147.

In Taylor v. Tampa Coal Company 46 So.2d 392 (Fla. 1950), a
case this law firm took to the Supreme Court, the Defendant
pumped water from a lake thereby lowering it. The water in
the lake came from rainfall and seepage there being no spring
or underground source. The lake was 49 inches below normal
in April, 1949 when Defendant began pumping. The evidence
showed the water became so low that swimmers acquired dirt and
silt on their bodies and were compelled to bathe after swimming.
The use of docks was impaired because the water was so low. The
Court said:

There may be certain special rights
peculiar to each shore owner according
to the nature of his possession and the
character and value of his improvements.

The Court went on to conclude that there is a remedy for an
unlawful interference with a lake's natural condition.

In another case, Labruzzo v. Atlantic Dredging and Construction
54 So.2d 673 (Fla. 1951), the Defendant excavated for construc-
tion of a yacht basin on his land, thereby interfering with a
subterranean stream feeding a spring on Plaintiff's property.
The Court found there was a cause of action here.

In another case, Pinellas County was pumping three million
gallons per day from a 3.63 acre tract. Plaintiff, an adjoining
landowner, sued because the water level was dropping. The
defendant won. Koch v. Wick 87 So.2d 47 (Fla., 1956). The
Court reversed and granted a new trial on the issue of reasonableness.

In Webb v. Giddens 82 So.2d 743 (Fla. 1955) the Court upheld the
lower Court's determination that the State Road Department
interfered with Plaintiff's use of his riparian rights by
blocking his access from an inlet into the main part of Lake
Jackson. The State Road Department had torn down a bridge and






78-7



constructed a landfill upon which they placed a road leaving
an open culvert in which the Plaintiff could have passed had
the culvert not flooded from the very beginning. This suit
was able to be maintained without the State's consent.

In the Bayer v. Teer Co. 124 S.E.2d 552 (N.C., 1962) recovery
was denied even though Plaintiff's well had become salty
allegedly from pumping out of water to carry on a quarry
operation.

In the City of Rosewell v. Berry 452 Pa.2d 179 (NM 1969)
the Court asked the question on page 183, what findings estab-
lish impairment as a matter of law? The case involved a New
Mexico statute, 75-11-7, New Mexico Statutes Ann., 1953
compilation. The state engineer has a positive duty to determine
whether existing rights would be impair d. Rosewell being
the applicant had the burden of proving that its proposed well
would not impair any existing rights. The state engineer found
that the pumping requested would cause an "ultimate and total
lowering of artesian water level of .16 feet in the Protestant's
(Berry) artesian well ." (Parenthesis added)

The engineer found that the decline of .16 feet will have
a "negligible effect" on the chemical quality of water pumped
from Berry's well. Berry contended that a "negligible effect"
shows there will be a worsening in the quality of water and
that any worsening, however slight, constitutes an impairment.
The Court would not decide whether there is an impairment if
there is a "worsening" in the quality of the water.

The Court, using Webster's Third International Dictionary
to define negligible to be "an effect of such little consequence
that it should be discarded," held:

The quality of water has not worsened
(deteriorated) as a result of the lowering
of the water level, if the result of such
lowering is of such little consequence that
it should be disregarded.

Thus as a matter of law, the lowering of the water table by
such a little amount was not impairment.

In Heine v. Reynolds (NM 1962) 367 Pa.2d 708 the appellant,
owner of an artesian water right in the artesian basin made
application to the state engineer, appellee, to change the
location of a well. The application was denied by the appellee
on the grounds that it would impair existing rights.

The Court sustained the state engineer's finding that a
gradual increase in the salt content of the water resulting
from the withdrawals from the artesian basin would impair


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78- 8




existing rights. The Court also stated "we are of the view
that the question of impairment of existing rights is a
matter which must generally depend on each application and to
attempt to define the same would lead to severe complications."

In another case, appellant, Texaco, filed an application
with the state engineer for permits to appropriate 700 acre
feet of water per year. Appellee, the state engineer, granted
that application for 350 acre feet. Texaco was to use the
water for flooding 1,360 acres of oil-bearing formations in a
producing oil field. The state engineer found that there was
no recharge except by very limited surface precipitation, and
that this precipitation was equaled by a natural discharge by
the basin; thus, there was no ability for the basin to recharge
itself. The state engineer found that the appropriation of
water by Texaco will unquestionably lower the water table in
the wells of protestants, and will result in an increase in
pumping costs and in shortening the time during which the protes-
tants can economically withdraw water. The court sustained the
state engineer's finding that Texaco wells would not impair
existing uses. Mathers v. Texaco, Inc. 421 P.2d 771 (NM, 1966).

Other cases are collected in 29 ALR 2d 1368 S8.

It appears from the reading of the western states' opinions
dealing with administrative law and water permitting that the
permit will not be issued unless it can be shown that the new
use will not interfere with an existing use. Some courts have
interpreted this to mean that as long as there is any excess
water over the water being used then a permit will be issued.
The policy being followed is one of maximum utilization of
available water. It needs to be pointed out that the permitting
process does not establish the amount of water that the new
permit holder may use; that decision is made at a later time.



MHG/gw


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