Title: Village of Tequesta v. Jupiter Inlet Corp. (Cites as Fla. 371 So.2d 663)
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Title: Village of Tequesta v. Jupiter Inlet Corp. (Cites as Fla. 371 So.2d 663)
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Village of Tequesta v. Jupiter Inlet Corp. (Cites as Fla. 371 So.2d 663) (JDV Box 43)
General Note: Box 18, Folder 3 ( Treatments of Water - 1983 ), Item 29
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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TEQUESTA v. JUPITER INLET CORP.
Cite as. Fla 371 So.2d 663


The VILLAGE OF TEQUESTA, etc.,
et al., Petitioners,

V.

JUPITER INLET CORPORATION,
etc, Respondent.

No. 52223.

Supreme Court of Florida.

May 3, 1979.

Rehearing Denied June 26, 1979.


Owner instituted action for inverse
condemnation and injunction on theory
that, due to depletion by village of shallow-
water aquifer beneath its property, owner
was effectively deprived of beneficial use of
its property rights in such aquifer. The
Circuit Court, Palm Beach County, Lewis
Kapner, J., granted summary judgment in
favor of village, and owner appealed. The
District Court of Appeal, 349 So.2d 216,
reversed and certified question whether
municipality could be held responsible
through inverse condemnation for taking of
underground shallow aquifer water to ex-
tent that owner was deprived of beneficial
use of aquifer. The Supreme Court, Ad-
kins, J., held that: (1) diversion of water
from shallow-water aquifer was not a "tak-
ing" or appropriation of property for public
use requiring condemnation proceeding; (2)
owner did not have constitutionally protect-
ed property right in water, requiring com-
pensation for taking of water when used
for a public purpose; (3) owner's only reme-
dy was through proper application for per-
mit Under Water Resources Act, and (4)
village could not be held responsible for
damages for inverse condemnation.
Decision of District Court of Appeal
quashed and cause remanded with instruc-
tions.


1. Waters and Water Courses = 101
Prior to adoption of Water Resources
Act, Florida followed reasonable use rule;
that is, a landowner, who in the course of
using his own land removed percolating


Fla. 663


water to the injury of his neighbor had to
be making a reasonable exercise of his pro-
prietary rights, i. e., such an exercise as
might be reasonably necessary for some
useful or beneficial purpose, generally relat-
ing to land in which waters were found.
West's F.S.A. 373.012 et seq.

2. Waters and Water Courses ==101
Reasonable use rule afforded landown-
er no ownership in waters below land, as
right of owner to ground water underlying
his land was to use of water and not to
water itself.

3. Waters and Water Courses -101
Percolating water, which is migratory
in nature and is part of land only so long as
it is in it, belongs to overlying owner in
limited sense that he has unqualified right
to capture and control it in reasonable way
with immunity from liability to his neigh-
bors for doing so but, if it flows or perco-
lates from his land, he loses all right and
interest in it the instant it passes beyond
property boundaries.

4. Waters and Water Courses 0=101
Right of owner to ground water under-
lying land is to usufruct of water and not to
water itself; ownership of land does not
carry with it any ownership of vested-rights
to underlying ground water not actually
diverted and applied to beneficial use.

5. Eminent Domain <=84
Right to use water does not carry with
it ownership of water lying under land, and
thus, although "right of user" may be pro-
tected by injunction or regulated by law,
right of user is not "private property" re-
quiring condemnation proceedings unless
property has been rendered useless by di-
version of water for certain purposes; over-
ruling Valls v. Arnold Industries, Inc., et
al., 328 So.2d 471.

6. Eminent Domain 0=2(1)
When governmental action is such that
it does not encroach on private property but
merely impairs its use by owner, action does
not constitute a "taking" but is merely con-
sequential damage and owner is not enti-


VILLAGE OF


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371 SOUTHERN REPORTER, 2d SERIES


tied to compensation. West's F.S.A.Const.
art. 10, 6.

7. Eminent Domain C270
If damage suffered by owner is equiva-
lent of a taking or an appropriation of
property for public use, then Constitution
recognizes owner's right to compel compen-
sation; on the other hand, if damage suf-
fered is not taking or appropriation within
limits of organic law, then damages suf-
,fered are damnum absque injuria and com-
pensation therefore by the public agency
cannot be compelled. West's F.S.A.Const.
art. 10, 6.


8. Waters and Water Courses c=144
"Reasonable use" rule, insofar as pro-
prietary beneficial use of water is con-
cerned, has no application where court is
concerned with proprietary use of land, and
in which water is only incidentally affected.

9. Eminent Domain *>84, 270
Where village utilized all available per-
colating water of shallow-well aquifer in
area of owner's land, owner decided to be-
come competing user, which desire was
thwarted because village had utilized all
water that could be safely withdrawn from
aquifer, and owner then had to go deeper to
SFloridan aquifer to obtain its water, owner,
which had right to use water but which had
never perfected use to point that it was in
existence, was not entitled to compensation
on inverse condemnation theory for "tak-
ing" or appropriation of property for public
use as result of village's diversion of water
from shallow-water aquifer. West's F.S.A.
Const. art. 10, 6.

10. Eminent Domain e=84
Landowner does not have constitution-
ally protected property right in water be-
neath property, requiring compensation for
taking of water when used for a public
purpose. West's F.S.A.Const. art. 10, 6.
11. Waters and Water Courses c=144
Just as legislation may limit use of
property for certain purposes by zoning, so
right to use of water may also be limited or
regulated. West's F.S.A. 373.012 et seq.


12. Waters and Water Courses =-101
Owner, in serving a 120-unit condomin-
ium, did not qualify as individual user and
thus, in order to draw water from beneath
its property, it had to secure a permit under
the Water Resources Act, which now con-
trols use of water, and without a permit
owner had no property right to use of water
beneath its land for deprivation of which it
had to be compensated through inverse con-
demnation. West's F.S.A. 873.016, 373.-
023(1), 373.219(1).
13. Eminent Domain c=266
Where village, which had utilized all
available percolating water of shallow-well
aquifer in area of owner's land, had ac-
quired permit under Water'Resources Act
and owner was merely a proposed user that
had not exercised its common-law water
right, owner had no perfected legal interest
to use of water beneath its land which
would support action in inverse condemna-
tion against village. West's F.S.A. 373.-
226(2, 3).
14. Eminent Domain *=3
Statutory prohibition of use of eminent
domain in one situation cannot be used as
authority for its use by implication in an-
other, as statute must be strictly construed.
West's F.S.A. 373.1961(7).

John C. Randolph of Johnston, Sasser &
Randolph, West Palm Beach, for petition-
ers.
Marjorie D. Gadarian of Jones, Paine &
Foster, West Palm Beach, for respondent.
Robert Grafton, Thomas J. Schwartz,
John H. Wheeler and Stephen A. Walker,
West Palm Beach, amicus curiae for South
Florida Water Management District.
John T. Allen, Jr., St. Petersburg, amicus
curiae for Pinellas County.
Louis de la Parte, Jr., Tampa, amicus
curiae for West Coast Regional Water Sup-
ply Authority.
Jacob D. Varn, of Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, Tampa, amicus
curiae for Pasco County, S. C. Bexley, Jr.,
L. S. B. Corporation, and Angeline Corpora-
tion.


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VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cite as. Fla.. 371 So.2d 663


John F. Wendel, of Wendel, Broderick &
Qhritton, Lakeland, amicus curiae, for Cit-
rus County.

ADKINS, Justice.
Pursuant to article V, section 3(bX3),
Florida Constitution, the Fourth District
Court of Appeal in Jupiter Inlet Corp. v.
Village of Tequesta, 349 So.2d 216 (Fla. 4th
DCA 1977) certified to this Court as a mat-
ter of great public interest the following
question:
Can a municipality be held responsible
through inverse condemnation for a tak-
ing, from private ownership for public
purposes, of underground shallow aquifer
water, to the extent that the owner is
deprived of the beneficial use of the aqui-
fer?
Jupiter Inlet Corporation, plaintiff in the
trial court, will be referred to as Jupiter,
and The Village of Tequesta, defendant in
the trial court, will be referred to as Te-
questa.
Jupiter owned property near Tequesta on
which it planned to build a 120-unit condo-
minium project, "Broadview." This proper-
ty was located approximately 1200 feet
from Tequesta's well field number four.
This well field contained seven wells, seven-
ty-five to ninety feet deep, which pumped
in excess of a million gallons of water a day
from the shallow water aquifer to supply
Tequesta residents with water. It was rela-
tively inexpensive to withdraw water from
the shallow-water aquifer.
As a result of the excessive amount of
water withdrawn by Tequesta from the
shallow-water aquifer, the fresh-water sup-
ply was endangered and salt water from
the intercoastal waterway intruded into the
shallow-water aquifer. There was testimo-
ny from a hydrologist that saltwater intru-
sion was caused by a reduction in the water
levels in the interior to a point low enough
that the fresh-water level could not with-
stand the pressure of the saltwater level in
the intercoastal. The water which Teques-
ta withdrew came from the shallow-water
aquifer beneath its property. Because Te-
questa would not supply Jupiter water, it


Fla. 665


was necessary for Jupiter to secure a spe-
cial exception from the county. Tequesta
opposed the permit application and it was
denied. Jupiter was not permitted to drill
wells to withdraw water from the shallow-
water aquifer because of the endangered
condition of the aquifer due to the excessive
withdrawals made by Tequesta.
The only means by which Jupiter could
supply water to its property was to drill a
well to the Floridan aquifer located 1200
feet below the surface, at a substantially
greater cost.
Jupiter instituted an action for inverse
condemnation and injunction due to the ex-
cessive pumping by Tequesta. The theory
of Jupiter's action was that due to depletion
by Tequesta of the shallow-water aquifer
beneath its property Jupiter was effectively
deprived of the beneficial use of its proper-
ty rights in the shallow-water aquifer.
Considering any factual conflicts in the
light most favorable to Jupiter, the trial
judge granted a summary judgment in fa-
vor of the Village of Tequesta. Viewing
the facts in the same light as did the trial
court, the district court of appeal said:
The owner has been deprived by govern-
ment action of the use and enjoyment of
what was his, and so through a suit in
inverse condemnation he can compel the
government to pay for what it has taken.
349 So.2d at 217. ;The district court of
appeal then certified the above question to
this Court for consideration.-
The following hydrological statements
are fully supported by F. Maloney, S. Plag-
er, and F. Baldwin, Water Law and Admin-
istration, page 141 (1968) (hereinafter re-
ferred to as Water Law) as well as the
discussion in City of St. Petersburg v.
Southwest Florida Water Management Dis-
trict, 355 So.2d 796 (Fla. 2d DCA 1977).
Water-bearing zones under the earth's
surface capable of receiving, storing, and
transmitting water are called aquifers.
Most aquifers in Florida are cavernous
limestone or sand and shale beds. Aquifers
are separated by relatively impervious lay-
ers of shales and clays which are called
aquicludes.


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There are two basic types of acquifers.
One is the unconfined aquifer associated
with the water table. It is free to rise and
fall with the amount of rainfall and other
surface-water influences such as rivers,
lakes, irrigation, etc. Near the coast the
water level in this aquifer fluctuates with
the tidal action. It is referred to as the
ground-water aquifer, water-table aquifer,
and the shallow aquifer.
The other type of aquifer is an artesian
aquifer. Water in this aquifer is confined
within aquicludes. Water will either not
pass through these aquicludes or will do so
at a much slower rate than it can travel
within the aquifer itself. Water enters
artesian aquifers slowly through the sur-
rounding aquiclude by virtue of fissures,
sinkholes, or other openings in the aqui-
elude. Water tii the artesian aquifer is
under pressure. One artesian aquifer is
known as the Florindan aquifer. It underlies
-most of the state and furnishes most of the
well-water supplies of the state.
In an early decision, Tampa Watchworks
Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896),
we made a classification of water passing
over or through lands as follows:
S(1) In respect to surface streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one
owner to those of another; (2) in respect
to surface waters, however originating,
which, without any distinct or well-
defined channel, by attraction, gravita-
tion, or otherwise, are shed and pass from
the lands of one proprietor to those of
another; (3) subterranean streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one to
those of another proprietor; (4) subsur-
face waters which, without any perma-
nent, distinct, or definite channel, perco-
late in veins or filter from the lands of
one owner to those of another.
20 So. at 782.
Although we classified water as if its
different physical states were separate and
distinct, we recognize that these classes are
interrelated parts of the hydrologic cycle.
We are primarily concerned in this case


with the rights of landowners in the shal-
low-water aquifer.

[1] Ancient law gave no special consid-
eration to ground water, treating all water
like the air, the sea, and wild animals, as
the property of no one or the property of
everyone. Trelease, Government Owner-
ship and Trusteeship of Water, 45 Calif.
Law Review 638, 640 (1957). Technological
ignorance about the existence, origin, move-
ment and course of percolating ground
waters resulted in the so-calred "English
rule" which essentially allowed a land own-
er to take or interfere with percolating
waters underlying his land, irrespective of
any effects his use might have on ground
water underlying his neighbors' lands. This
doctrine, first enunciated in 1843 in an Eng-
lish case, Acton v. Blundell, 152 Eng.Rep.
1235 (1843) was based upon the maxim, "To
whomsoever the soil belongs, he owns also
to the sky and to the depths." See Water
Law at 155. With the growth of hydrologi-
cal capabilities in pumping technology, the
English rule was repudiated in most Ameri-
can jurisdictions. See Annots. 29 A.L.R.2d
1354, 1361-65 (1953); 109 A.L.R. 395, 399-
403 (1937); 55 A.L.R. 1385, 1398-1408
(1928), and cases cited therein. The so-
called "American," or "reasonable use," rule
rejected the "to the sky and to the depths"
notion for another maxim, "use your own
property so as not to injure that of anoth-
er." See Koch v. Wick, 87 So.2d 47 (Fla.
1956); Cason v. Florida Power Co., 74 Fla.
1, 76 So. 535 (Fla.1917); Bassett v. Salis-
bury Manufacturing Co., 43 N.H. 569 (1862).
The reasonable use rule adopted by most
Eastern states, including Florida, was stat-
ed by one court as follows:
[A] landowner, who, in the course of us-
ing his own land, obstructs, diverts, or
removes percolating water to the injury
of his neighbor must be [mak-
ing] a reasonable exercise of his proprie-
tary right, i. e., such an exercise as may
be reasonably necessary for some useful
or beneficial purpose, generally relating
to the land in which the waters are
found.


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VILLAGE OF TEQUESTA v. JUPITER INLET CORP. Fla. 667
Cite as. Fla. 371 So.2d 663


Finley et ux. v. Teeter Stone, Inc., 251 Md.
428, 435, 248 A.2d 106, 111 12 (Md.App.
1968). See also Water Law at 158.
In applying the reasonable use rule this
Court has not given definite answers as to
the actual amount of water that may be
taken by overlying land owners, nor have
we considered the meaning of the term
"ownership" as applied to percolating
water.
In 93 C.J.S. Waters section 90, page 765
(1956), the rule is stated thus:
There can be no ownership in seeping and
percolating waters in the absolute sense,
because of their wandering and migrato-
ry character, unless and until they are
reduced to the actual possession and con-
trol of the person claiming them. Their
ownership consists in the right of the
owner of the land to capture, control, and
possess them, to prevent their escape, if
he can do so, from his land, and to pre-
vent strangers from trespassing on his
land in an effort to capture, control, or
possess them. If percolating waters es-
cape naturally to other lands, the title of
the former owner is gone; while a land-
owner may prevent the escape of such
waters from his land, if he can do so, yet
he has no right to follow them into the
lands of another and there capture, con-
trol, or reduce them to possession. [Foot-
notes omitted]
[2] The common-law concept of absolute
ownership of percolating water while it is in
one's land gave him the right to abstract
from his land all the water he could find
there., On the other hand, it afforded him
no protection against the acts of his neigh-
bors who, by pumping on their own land,
managed to draw out of his land all the
water it contained. Thus the term "owner-
ship" as applied to percolating water never
meant that the overlying owner had a prop-
erty or proprietary interest in the corpus of
the water itself.
[3] This necessarily follows from the
physical characteristic of percolating water.
It is migratory in nature and is a part of
the land only so long as it is in it. There is
a right of use as it passes, but there is no


ownership in the absolute sense. It belongs
to the overlying owner in a limited sense,
that is, he has the unqualified right to
capture and control it in a reasonable way
with an immunity from liability to his
neighbors for doing so. When it is reduced
to his possession and control, it ceases to be
percolating water and becomes his personal
property. But if it flows or percolates from
his land, he loses all right and interest in it
the instant it passes beyond the boundaries
of his property, and when it enters the land
of his neighbor it belongs to him in the
same limited way.

[4] The right of the owner to ground
water underlying his land is to the usufruct
of the water and not to the water itself.
The ownership of the land does not carry
with it any ownership of vested rights to
underlying ground water not actually- di-
verted and applied to beneficial use.
In Vails v. Arnold Industries, Inc. et al.,
328 So.2d 471, 473 (Fla. 2d DCA 1976) the
court said:
Water, oil, minerals and other substances
of value which lie beneath the surface are
valuable property rights which cannot be
divested without due process of law and
the payment of just compensation.
This case involved a post-trial apportion-
ment award in condemnation as between
fee-title owners and owners of reserved
mineral rights. In order to effect a pay-
ment to the holders of the mineral rights, it
was necessary for the court to find that
these mineral rights were property rights
and therefore subject to condemnation.
The court relied upon Copello v. Hart, 293
So.2d 734 (Fla. 1st DCA 1974) and Dickin-
son et al. v. Davis et al., 224 So.2d 262
(Fla.1969). These cases held that minerals,
gas, and oil are separate properties from
the surface and may be conveyed and taxed
separately. Neither case referred to prop-
erty rights in water.
[5] We overrule the dicta in Valls, su-
pra, that water beneath the surface is a
private property right which cannot be di-
vested under any circumstances without
due process of law and the payment of just


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371 SOUTHERN REPORTER. 2d SERIES


compensation. The right to use water does
not carry with it ownership of the water
lying under the land. Of course, "property"
in its strict legal sense "means that domin-
ion or indefinite right of user and disposi-
tion which one may lawfully exercise over
particular things or objects." Tatum
Brothers, etc. v. Watson, 92 Fla. 278, 109 So.
623, 626 (1926). This "right of user" may
be protected by injunction, Koch v. Wick,
supra, or regulated by law, Pounds v. Dar-
ling, 75 Fla. 125, 77 So. 666 (1918); Broward
v. Mabry, 58 Fla. 398, 50 So. 826 (1909), but
the right of user is not considered "private
property" requiring condemnation proceed-
ings unless the property has been rendered
useless for certain purposes. For example,
in Kendry et a. v. State Road Department,
213 So.2d 23 (Fla. 4hf DCA 1968), the state
agency caused such flooding on the owner's
property that it was *rendered useless for
residential purposes. This was a "taking."
In-the case sub judice, Jupiter was only
subjected to the consequential damages in-
curred when it was required to draw water
from the Floridan aquifer instead of the
shallow-water aquifer. It still had a "right
of user."
There is a distinction when this right of
user as to water has been invaded by cir-
cumstances showing an intentional invasion
in an unreasonable manner or an uninten-
tional invasion when the conduct was negli-
gent, reckless, or ultrahazardous, resulting
in a destruction of the right of user as to
land.


For example, in Labruzzo et ux. v. Atlan-
tic Dredging & Const. Co. etc., 54 So.2d 673
(Fla.1951), plaintiff sued for damages for
the interruption and diversion of the natu-
ral flow of the underground waters which
fed plaintiffs spring. The defendant con-
tended that there was no indication of the
existence of a well-defined subterranean
stream feeding plaintiff's spring. There-
fore, the source of the spring should have
been considered percolating waters, the
S flow of which had been interrupted by the
defendant in the lawful and reasonable use
of its property. Under the reasonable use
rule, defendant contended that plaintiff had


no cause of action. The trial judge agreed
and, upon appeal, this Court reversed, say-
ing:
At the outset, it should be noted that we
are not here dealing with a problem in-
volving a proprietary competition over
the water itself-that is to say, there is
no conflict here between the respective
rights of persons to make competing pro-
prietary uses of subterranean waters to
which they both have access. In such
cases, the present trend among the courts
of this country is away from the old
common-law rule of unqualified and abso-
lute right of a landowner to intercept and
draw from his land the percolating
waters therein; and the latter cases hold
that the right of a landowner to subterra-
nean waters percolating through his own
land and his neighbor's lands is limited to
a reasonable and beneficial use of such
waters.
In the instant case, however, we are con-
cerned with an interference with plain-
tiffs' use of the spring on their land,
caused by conduct of the defendant not
involving a competing use of water and
in which the effect on the subterranean
water is only incidental to the defend-
ant's use of its land. Obviously, then, the
rule of "reasonable use," as engrafted
upon the old common-law rule of absolute
and unqualified ownership of percolating
waters, insofar as the proprietary benefi-
cial use of the water is concerned, has no
application here where we are concerned
with the proprietary use of land, and in
which the water is only incidentally af-
fected. Under such circumstances, even
at common law, a person was subject to
liability for interference with another's
use of water, either for (1) an intentional
invasion when his conduct was unreason-
able under the circumstances of the par-
ticular case, or (2) an unintentional inva-
sion when his conduct was negligent,
reckless or ultrahazardous. Restatement
of Torts, Vol. IV, Section 849, and Sec-
tions 822-840. In the absence, then, of
surface indications, an interference with
subterranean water is, or course, uninten-
tional and damnum absque injuria unless


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668 Fla.











VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cite as, F1a. 371 So.2d 663


the conduct resulting therein is negligent,
reckless or ultrahazardous.
Since the allegations of plaintiffs' decla-
ration must be taken as true on demur-
rer, it is clear that plaintiffs have stated
a cause of action for an intentional inva-
sion by defendant of their water rights,
for which it must respond in damages if
its conduct was unreasonable under the
particular circumstances. [Cita-
tions omitted].
54 So.2d at 675-77.
Article X, section 6, of the Florida Consti-
tution forbids the "taking" of private prop-
erty except for a public purpose and with
full compensation. Unlike the constitutions
of several other states, the Florida Consti-
tution does not expressly forbid "damage"
to property without just compensation.
Arundel Corp. et al. v. Griffin et al., 89
Fla. 128, 103 So. 422 (1925).
[6] When the governmental action is
such that it does not encroach on private
property but merely impairs its use by the
owner, the action does not constitute a
"taking" but is merely consequential dani-
age and the owner is not entitled to com-
pensation. Selden et al. v. City of Jackson-
ville, 28 Fla. 558, 10 So. 457 (1891).
In Poe v. State Road Department, 127
So.2d 898, 901 (Fla. 1st DCA 1961) the court
said:
It is universally recognized that injury by
the condemnor to remaining land caused
by obstructing, diverting or increasing
the flow of surface waters, but which do
not amount to a permanent deprivation
by the owner of the use of such remain-
ing lands, is a consequential damage re-
sultirtg from the taking in an eminent
domain proceeding, and must be recov-
ered in that proceeding, if at all. [Foot-
note omitted].
[7] If the damage suffered by the own-
er is the equivalent "of a taking" or an
appropriation of his property for public use,
then our constitution recognizes the owner's
right to compel compensation. On the oth-
er hand, if the damage suffered is not a
taking or an appropriation within the limits


Fla. 669


of our organic law, then the damages suf-
fered are damnum absque injuria and com-
pensation therefore by the public agency
cannot be compelled. Weir v. Palm Beach
County, 85 So.2d 865 (Fla.1956).
The district court of appeal, in its opinion,
relied upon White v. Pinellas County, 185
So.2d 468 (Fla.1966), as authority for the
principle that a taking can occur when any
property rights are involved. This case in-
volved trees and shrubs located on the prop-
erty which were used as a windbreak and a
privacy screen. In White there was a phys-
ical invasion of the property when the state,
through its agents, cut down large trees
and shrubs. In the case sub judice there
was no physical invasion of Jupiter's prop-
erty by the agents of Tequesta, so no com-
pensation is due for consequential damage.
The cases relied upon by respondent in-
volve situations where there was damage to
the land itself, a result which does not exist
in this case. Cason v. Florida Power Co.,
supra, dealt with resulting damage to the
fee because of the diversion of percolating
water. Koch v. Wick, supra, dealt with
damage to the fee by diversion of water
therefrom to the point that the fee would
become infertile and unsuitable for cultiva-
tion. In State Road Department et al. v.
Tharp, 146 Fla. 745, 1 So.2d 868 (1941), the
construction of a highway embankment im-
peded the flow and raised the level of a
millrace to such an 9,tent as to destroy the
use of plaintiff's grist mill. This was held
to be a taking.
[8] The "reasonable use" rule insofar as
the proprietary beneficial use of water is
concerned has no application where the
court is concerned with the proprietary use
of land, and in which the water is only
incidentally affected. See Labruzzo v. At-
lantic Dredging and Construction Co., su-
pra.
Property owners have been successful in
seeking relief under the theory of inverse
condemnation against the appropriate au-
thority as a result of the excessive noise
from low-flying jet aircraft. See Hillsbor-
ough County Aviation Authority v. Benitez,
200 So.2d 194 (Fla. 2d DCA 1967). The


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371 SOUTHERN REPORTER, 2d SERIES


"taking" of an airspace above the land is
not comparable to the "taking" of the
water located in a ground aquifer beneath
the land in the absence of a trespass on the
land itself. The damage to the airspace
was such as to deprive the property owners
of all beneficial use of their property. The
alleged damage to the shallow-water aqui-
fer deprived Jupiter of no beneficial use of
Sthe land itself. Jupiter developed the prop-
erty to its highest and best use and has
suffered no more than consequential dam-
age, which is not compensable through in-
verse condemnation.
[9] The bare essential facts controlling
this case are simple and direct Teuesta
utilized all of thy available percolating
water of the shallow-well aquifer in the
area of Jupiter's land. Jupiter decided to
become a competing user. This desire was
thwarted because Tequesta had utilized all
of the water which could be safely with-
drawn from the shallow-well aquifer. This
meant Jupiter had to go deeper to the Flori-
dan aquifer to obtain its water and to spend
more money than it would have if allowed
to use the shallow-well aquifer. The costs
were increased both in drilling and treat-
_ment of the water. It is a hydrologic im-
possibility to place a value upon the water
which was withdrawn from underneath Ju-
piter's land.
It is incumbent upon Jupiter to show, not
only a taking, hut also that a private prop-
erty right has been destroyed by govern-
mental action. Jupiter did not have a con-
stitutionally protected right in the water
beneath its property.. In the cases cited by
Jupiter, the courts supported compensation
for the taking of a use which was existent
and of which a party was deprived. Juiter
seeks to be compensated for a use which it
had never perfected to the point that it was
in existence. Jupiter had a right to use the
water, but the use itself is not existent until
this right is exercised.
{ The property rights relative to waters
that naturally percolate through the land of
one owner to and through the land of an-
other are correlative. Reasonableness could
only be determined after the conflict arises
\ h-rrnrJ ihu rltv owtr


between users. The "reasonableness" of a
given use depends upon many variables
such as: the reasonable demands of other
users; the quantity of water available for
use; the consideration of public policy.
Even an allocation between conflicting
users has no durability, for the decision by
another land owner to exercise his previous-
ly neglected right to use water could easily
render all other uses unreasonable. A per-
son developing his own land cold make a
substantial investment with no way of de-
termining whether reasonable use by others
would limit or destroy his development
right even though it was the first in time.
110] The judicial system was ill-
equipped to deal with such conflict and
became oriented to a case-by-case approach
to solving disputes. This Court recognizes
that all conflicts between competing users
must be determined from the facts and
circumstance of particular cases as they
arise. Cason v. Florida Power Co., supra.
This "right to use" is not "private property"
as contemplated by article X, section 6,
Florida Constitution requiring full compen-
sation before taking for a public purpose.
[11 The State of Florida operates un-
der an administrative system of water man-
agement pursuant to the terms of the Flori-
da Water Resources Act Ch. 373, Fla.Stat.
(1972). The law prior to the Florida Water
Resources Act did not allow ownership in
the corpus of the water, but only in the use
of it. Even then, the use was bounded by
the perimeters of reasonable and beneficial
use. Legislation limiting the right to the
use of the water is in itself no more objec-
tionable than legislation forbiddir.g the use
of property for certain purposes by zoning
regulations. Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
L.Ed. 303 (1926); 54 A.L.R. 1016 (1928).
112] The Florida Water Resources Act,
in recognizing the need for conservation
and control of the waters in the state (Sec-
tion 373.016, Fla.Stat. (1973)) makes all
waters in the state subject to regulation,
unless otherwise specifically exempt.
373.023(1) Fla.Stat. (1973). The Depart-


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670 Fla.














VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
Cite as, Fla.. 371 So.2d 663


ment of Environmental Regulation and the
various water management districts are
given the responsibility to accomplish the
conservation, protection, management, and
control of the waters of the state. 373.-
016(3) Fla.Stat. (1973). In order to exercise
such controls a permitting system is estab-
lished which requires permits for consump-
tive use of water, exempting only "domestic
consumption of water by individual users"
from the requirements of a permit. 373.-
219(1) Fla.Stat. (1973). Jupiter, in serving
a 120-unit condominium, does not qualify as
an individual user and thus must secure a
permit in order to draw water from beneath
its property. Without a permit Jupiter has
no such property right to the use of water
beneath its land for which, upon depriva-
tion, it must be compensated through in-
verse condemnation.
[13] The Water Resources Act of 1972
recognizes a right to use water under the
common law as separate from the right to
use water under a permit granted pursuant
to the act. This is done by a provision
concerning the termination of the common-
law right and a transitional procedure. The
holder of such a common-law water-use
right was given two years to convert the
common-law water right into a permit
water right. 373.226(3) Fla.Stat. (1973).
In order to qualify for the initial permit
under section 373.226(2) Florida Statutes
(1973), the right must have been exercised
prior to the implementation of the Florida
Water Resources Act by a water manage-
ment district with geographical jurisdiction
in that, area. Otherwise the right is abap-
doned and extinguished requiring a new
application for a permit. Tequesta had ac-
quired the permit and Jupiter was merely a
proposed user. The Florida Water Re-
sources Act makes no provision for the con-
tinuation of an unexercised common-law
right to use water. Jupiter had perfected
no legal interest to the use of the water
beneath its land which would support an
action in inverse condemnation.
Section 373.1961 Florida Statutes (1975)
provides additional powers and duties for
the governing boards of the water manage-


ment district. Subsection (7)
the governing board:


provides that


May acquire title to such interest as is
necessary in real property, by purchase,
gift, devise, lease, eminent domain, or
otherwise, for water production and
transmission consistent with this section.
However, the district shall not use any of
the eminent domain powers herein grant-
ed to acquire water and water rights
already devoted to reasonable and benefi-
cial use or any water production or trans-
mission facilities owned by any county,
municipality, or regional water supply au-
thority. [Emphasis supplied].

[14] Condemnation of "water rights" is
.-not granted in the first sentence of this
subsection. The authority granted is spe-
cifically limited to the acquisition of land
for the purpose of constructing and operat-
ing well fields and other withdrawal facili-
ties ani for the right-of-way necessary for
the transmission of water to consumers.
The second sentence prohibits the use of
eminent domain to acquire such "water
rights" which were already being put to a
reasonable and beneficial use. The statuto-
ry prohibition of the use of eminent domain
in one situation cannot be used as authority
. for its use by implication in another, as the
statute must be strictly construed. Canal
Authority v. Miller, 243 So.2d 193 (Fla.
1970). All that Section 373.1961(7) Florida
Statutes (1975) accomplishes is to further
protect presently existing legal uses of
water. No implication can be drawn that
this section intends to include any "water
right" other than the permit that may be
granted by a water management district.
After all, if a use of water is both preexist-
ing ant also reasonable and beneficial, after
two years, it must be either under permit or
it is conclusively presumed to be abandoned.
There was no necessity for the Water Re-
sources Act to provide for the condemnation
of an unexercised right to use water, as the
owner became subject to the permit provi-
sions of the law. There was no "taking" of
this right


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Fla. 671


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672 Fla. 371 SOUTHERN REPORTER, 2d SERIES


In summary, we hold:
1. Prior to the adoption of the Water
Resources Act, Florida followed the reason-
able use rule; that is, a landowner, who, in
the course of using his own land, removes
percolating water to the injury of his neigh-
bor, must be making a reasonable exercise
of his proprietary rights, i. c., such an exer-
cise as may be reasonably necessary for
some useful or beneficial purpose, generally
relating to the land in which the waters are
- found;
2. There was no ownership in the waters
below the land, as the right of the owner to
ground water underlying his land was to
the use of the water and not to the water
itself;
3. In aDplying the reasonable use rule,
This Court has not given definite answers as
to the actual amtint of water that may be
taken by overlying landowners;
4. The diversion of water from the shal-
low-water aquifer is not a "taking" or an
appropriation of property for public use re-
quiring condemnation proceeding unless
there is a resulting dalnmae to the lanl
itself, for example, a diversion of water to
the extent that the land becomes unsuitable
for-cultivation, raising the level of flowing
waters to the extent that land is flooded,
etc.;
5. The landowner does not have a con-
stitutionally-protccted property right in the
water beneath the property, requiring coml-
pensation for the taking of the water when
used for a public purpose;
6. Just as legislation may limit the use
of property for certain purposes by zoning,
so it is that the right to the use of the
water may also be limited or regulated.
7. The Water Resources Act now con-
trols the use of water and replaces the ad
hoc judicial determination in water man-
agement districts where consumptive use
permitting is in force.
8. Jupiter's remedy is only through
proper application for a permit under the
Florida Water Resources Act.
For the above reasons, we answer the
certified question in the negative and hohl
that Tequesta cannot be held responsible
for damages through inverse condemnation.


The decision of the district court of ap-
peal is quashed and this cause is remanded
with instructions to affirm the summary
judgment entered by the trial judge in fa-
vor of Tequesta.


ENGLAND, C. J., and BOYD, OVER-
TON AND SUNDBERG, JJ., concur.





ftYNUMdERSVSITM







Melody ROSENBERG. Petitioner,
V.

Michael ROSENBERG, Respondent.
No. 53082.

Supreme Court of Florida.

May 31, 1979.

Certiorari to the District Court of Appeal,
Third District Case No. 76 1628.

James 0. Nelson, Miami, for petitioner.
Charles R. Lipcon, Miami, for respondent.


PER CURIAM.
This court adopts the dissenting opinion
by Judge Hubbart, reported at 352 So.2d
867 (Fla.3d DCA 1977)
Accordingly, the opinion or the Third Dis-
trict Court of Appeal is quashed, and the
case remanded with directions that the trial
court set attorney's fees for Petitioner's
counsel.


ENGLAND, C. J., and SUNDBERG,
IIATCIIETT and ALDERMAN, JJ., concur.

BOYD, J., dissents.

Order on mandate, 372 So.2d 1022.


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