Title: Brown v. Ellingson, Cite as, Fla., 224, So.2d 391
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 Material Information
Title: Brown v. Ellingson, Cite as, Fla., 224, So.2d 391
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Brown v. Ellingson, Cite as, Fla., 224, So.2d 391 (JDV Box 43)
General Note: Box 18, Folder 5 ( Pamphlets, Books, Articles, etc - 1960s & 1970s ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004229
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Full Text



Fla. 391


BROWN v. ELLINGSON
Cite as, Fla., 224 So.2d 391


Edward A. Perse, of Carey, Dwyer,
Austin, Cole & Selwood, Miami, and
Oliver L. Green, Jr., Lakeland, for ap-
pellant.

C. John Coniglio, Wildwood, for ap-
pellee.


LILES, Chief Judge.

Marilyn F. Glaum was divorced from
Cyril S. Glaum in Sumter County, Florida,
on January 12, 1968. Subsequent to the
entry of the final decree, the defendant,
Cyril S. Glaum, filed a motion to set it
aside. This motion was heard by the
trial judge, and was denied on April 2,
1968. Thereafter, defendant filed a motion
for rehearing of the order denying the
motion to set aside the final decree, and
this motion for rehearing was denied
October 14, 1968. This order is here for
review on interlocutory appeal.

Plaintiff and defendant were residents
of Dade County, Florida, but by way of
mutual agreement the divorce was started
and concluded in Sumter County, Florida.

Defendant attempted to have his decree
set aside alleging fraud. He testified that
during the time the divorce was pending
and prior to the entry of the final decree
the plaintiff and defendant were constantly
in touch with each other and that they had
cohabited as husband and wife prior to the
entry of the final decree. He stated that
they had reconciled after the filing of the
complaint for divorce and that plaintiff had
told him the suit had been dismissed.

At the hearing to set aside the final de-
cree the plaintiff denied that she had ever
cohabited with the defendant since the
filing of the complaint. She testified that
it was true that defendant had harassed
her and was constantly telephoning her
begging h-r to see hinm, and that she did on
several occasions due to these harassments
allow him to take her to dinner. She
stated that she even allowed him to live
in her house for a short period of time prior
to the entry of the final decree, but she


categorically denied that there had been
cohabitation between the parties. She also
denied cohabiting with him at anytime
within several months prior to filing for
divorce, and insisted no reconciliation had
been attained.

At the hearing on the motion to set aside
the final decree, defendant testified that
he had lived with her as husband and wife
in motels on a trip to Las Vagas prior to
the filing of suit, and in Orlando and in
their home subsequent to its filing. This
was the only testimony adduced at the
hearing and, as is readily apparent, there
was a conflict.

The trial judge being the trier of fact
had to reconcile these conflicts and he did
so in favor of the plaintiff. We can find
nowhere that he abused his discretion, and,
for that reason, we affirm.

MANN and McNULTY, JJ., concur.



W r x ,


Walter L. BROWN, on behalf of himself and
all others similarly situated, Appellant,
V.
Oren A. ELLINGSON, William E. Cobb, the
Citrus Grove Development Company, a
Florida corporation, W. J. Mann, J. J.
Frekehayes, and Richard F. Dopier, Indi-
vidually and as representatives of a class
to which they belong, Appellees.
No. 68-600.

District Court of Appeal of Florida.
Second District.
June 11, 1969.

Rehoaring Denied July 2S, 1969.


Action against orchardists as a class by
owner of property abutting lake for him-
self and on behalf of all others similarly
situated to enjoin defendants from draw-


---'--------Y -Y~~~ III-M r,






224 SOUTHERN REPORTER, 2d SERIES


ing water from lake without first obtaining
written consent of owners of all abutting
property. The Circuit Court for Polk
County, J. H. Willson, J., dismissed com-
plaint with leave to amend and plaintiff
took interlocutory appeal. The District
Court of Appeal, Liles, C. J., held that
statute making it unlawful for any per-
son to drain or draw water from any lake
of greater area than two square miles so
as to lower the level thereof without first
obtaining written consent of all abutting
property owners applies not only where lake
is lowered through drainage by means of
canal or ditch but also where level is low-
ered by drawing water off by pumping
for irrigation purposes, but that suit could
not be maintained as class action.

Affirmed in part, reversed in part and
remanded.


1. Waters and Water Courses =1 14
Complaint filed by owner of property
abutting lake, which defendants were al-
legedly unlawfully draining for purpose of
irrigating their fruit groves, sufficiently
alleged cause of action predicated on vio-
lation of drainage statute and also suf-
ficiently alleged cause of action for viola-
tion of common-law riparian rights. F.S.A.
298.74.

2. Waters and Water Courses =109
Statute making it unlawful for any per-
son to drain or draw water from any lake
of greater area than two square miles so
as to lower level thereof without first ob-
taining written consent of all abutting prop-
erty owners applies not only where lake
is lowered through drainage by means of
canal or ditch but also where level is low-
ered by drawing water off by pumping for
irrigation purposes. F.S.A. 298.74.

3. Parties e-12
In absence of allegation that abutting
property owner adequately represented all
other such owners, that action challenging
right of defendants to lower level of lake


without permission of surrounding proper-
ty owners was required to be brought as
class suit, that named defendants adequately
represented purported class of defendants,
that defendants were required to be sued
as a class, that class of defendants were
so numerous as to make it impractical to
join them individually and absent showing
by requisite degree of certainty that plain-
tiffs were all too numerous to be joined in
one action, suit could not be maintained as
class action. F.S.A. 298.74.

4. Parties C1 I
Fact that there is apparent overlapping
of interests between plaintiffs and de-
fendants in one or more factors necessary
to maintain class action is not fatal where
it is shown by complaint or surrounding cir-
cumstances that those defendants violating
plaintiff's rights are excepted from class
plaintiff seeks to represent.

5. Evidence =12
For purpose of determining whether
owners of property abutting lake sought to
be drained by defendants in violation of
statute were too numerous to all be joined
in one suit and thus would entitle one
of their number to maintain suit as class
action, court would not take judicial notice
of number of abutting property owners.
F.S.A. 298.74.



G. Robert Schultz, St. Petersburg, for
appellant.

Joe R. Young, Jr., and Clinton A. Curtis,
Lake Wales, and Stephen H. Grimes, Bar-
tow, for appellees.


LILES, Chief Judge.

Walter L. Brown, appellant here and
plaintiff in the trial court, filed his com-
plaint for himself and all others similarly
situated against defendant-appellees, al-
leging that defendants were violating Sec-
tion 298.74, Florida Statutes, F.S.A., en-


U IrI---~.~al8


392 Fla.







Fla. 393


BROWN v. ELLINGSON
Cite as, Fla., 224 So.2d 391


titled "Drainage of Lakes," by drawing
water from Crooked Lake, a lake greater
than two square miles, without first ob-
taining written consent of the abutting
owners. He also alleged that defendants
were thereby infringing upon his common
law rights as a riparian owner.

Defendants filed a motion to dismiss on
the grounds that the complaint failed to
state a cause of action, and that it was
improperly framed as a class action. The
trial judge granted the motion to dismiss
with leave to amend. However, plaintiff
chose to take this interlocutory appeal rath-
er than file an amended complaint.

In dismissing the complaint, the trial
court held that 298.74 did not apply to
the present situation because it only con-
trols when such a lake is lowered by drain-
age by means of a canal or ditch and not
by drawing the water off by pumping as
here. It is alleged the lake was being
drained below its normal water level as a
result of defendants' grove irrigation ac-
tivities.

It is clear from reading the statute that
it requires one who wishes to drain or draw
water from any lake of greater area than
two square miles so as to lower the level
thereof must first obtain written consent
of all owners of property abutting on or
bounded by said lake. Whether the de-
fendants have in fact lowered the level of
the lake is a question to be decided by the
evidence adduced. The complaint alleges
that they have, and that they have done
so by drawing water from the lake to ir-
rigate their groves. While irrigation of
groves from riparian waters is normally a
proper activity, it is prohibited by statute
when the level of the lake is lowered there-
by unless permission from property owners
abutting the lake is first obtained.

I. It is unlawful for any person to drain
or draw water from any lake of greater
area than two square miles so as to lower
the level thereof without first obtain-
ing the written consent of all owners
of property abutting on or bounded by
224 So.2d-25V2


The trial judge cited in his order of dis-
missal the cases of Tilden v. Smith, 1927,
94 Fla. 502, 113 So. 708 and Lungren v.
Strawn, 1942, 151 Fla. 106, 9 So.2d 195.
The Tilden case had to do with lowering
the lake to its normal level by draining off
excess water into the underground by means
of a well, and the court there held that this
was a drainage project but that the statute
did not prohibit the lowering of an abnor-
mally high level in an effort to return the
lake to its natural level by such means. The
Lungren case involved a similar situation
to the instant case. But there it was prov-
en that the lake in question was less than
two square miles and that this statute
therefore did not apply. In neither case
is there a suggestion that this statute only
applies when the lowering is solely accom-
plished by "drainage" as opposed to "pump-
ing" or any other method whereby water
can be drawn from a lake.

[1,2] We therefore believe that plain-
tiff's complaint states a cause of action
pursuant to 298.74, Fla.Stat., F.S.A., and
that he should be given the opportunity
of proving whether the complaint is true
or not. That is, plaintiff must show that
the level of Crooked Lake has been lowered
below its normal level as a direct result
of defendants' pumping operations.

We are also of the opinion that plain-
tiff's complaint also stated a cause of ac-
tion in stating that his common-law riparian
rights are being violated. He alleges that
defendants have unreasonably caused the
normal water level of Crooked Lake to be
lowered so that the shoreline has receded
markedly and large areas of the lake bot-
tom are now exposed, all of which has de-
prived plaintiff of the reasonable use of
the lake for pleasure and recreational pur-
poses. While the problems of proof in
this matter may indeed be difficult, the

said lake; provided, however, this sec-
tion shall not apply to any lake included
wholly within the Everglades drainage
district. Courts of equity shall have ju-
risdiction to enjoin any person from vio-
lating the provisions of this section.


--- -----~-I I1P I _~__I







224 SOUTHERN REPORTER, 2d SERIES


dismissal of the complaint must be reversed
for further proceedings on this issue. See
Taylor v. Tampa Coal Co., Fla., 1950, 46
So.2d 392; Lake Gibson Land Co. v. Lester,
Fla.App., 1958, 102 So.2d 833; Duval v.
Thomas, Fla.App., 1958, 107 So.2d 148;
Florio v. State ex rel. Epperson, Fla.App.,
1960, 119 So2d 305, 80 A.L.R.2d 1117.

[3] The final point on appeal concerns
the framing of this suit as a class action.
The trial judge properly dismissed this suit
without prejudice in holding that the com-
plaint was not properly framed as a class
action.

Plaintiff has brought suit purporting to
represent himself and "all others similarly
situated," and he sues the named defend-
ants "individually and as representatives of
a class to which they belong." This court
has recently construed the standards to be
applied in determining whether an action
has properly been framed as a class action.
In Port Royal, Inc. v. Conboy, Fla.App.,
1963, 154 So.2d 734, we said that:

"It is fundamental that an action is not
a class suit merely because the plain-
tiff designates it as such in the com-
plaint and uses the language of the rule.
Whether it is or is not a class suit
depends upon the circumstances sur-
rounding the case. However, the com-
plaint should allege facts showing the
necessity for bringing the action as a
class suit and the plaintiff's right to
represent the class. The plaintiff should
allege that he brings the suit on behalf
of himself and others similarly situated.
The complaint should allege the existence
of a class, described with some degree of
certainty, and that the members of the
class are so numerous as to make it im-
practicable to bring them all before the
court. It should be made clear that the
plaintiff adequately represents the class,
and whether a party adequately repre-
sents the persons on whose behalf he
sues depends on the facts of the par-
ticular case. Generally, the interest of
the plaintiff must be co-extensive with


the interest of the other members of the
class. A class suit is maintainable where
the subject of the action presents a ques-
tion of common or general interest, and
where all members of the class have a
similar interest in obtaining the relief
sought. The common or general interest
must be in the object of the action, in
the result sought to be accomplished in
the proceedings, or in the question in-
volved in the action. There must be a
common right of recovery based on the
same essential facts." 154 So.2d at 736.

[4] In applying these standards to the
present case we must consider "circum-
stances surrounding" this case on the basis
of the facts alleged in the complaint. With
regard to the existence of a class of plain-
tiffs, it appears some of the standards have
been met. Plaintiff purports to represent
all those people similarly situated, and it
is apparent from the complaint that this
group consists of other land owners abut-
ting Crooked Lake. This group is ascer-
tainable with the requisite degree of cer-
tainty. That is, the members of this class
are identifiable since they consist of all
abutting land owners, with the exception of
those land owners who are defendants.
The fact there is an apparent overlapping
of interests in that defendants are also
abutting land owners is not fatal because, as
pointed out in Port Royal, the statement
that plaintiff only represents those land
owners "similarly situated" necessarily ex-
cepts from the class of plaintiffs those de-
fendants that are violating plaintiffs' rights.
Likewise, the interest of these plaintiffs
is co-extensive.

[5] Plaintiff's complaint, however, is
somewhat deficient as regards other plead-
ing requirements of a proper class suit.
Plaintiff has not alleged that he adequately
represents all the members of this class.
Likewise, he has not alleged facts which
demonstrate the necessity for bringing this
action as a class action suit. Finally,
though plaintiff has alleged that the class
of plaintiffs is too numerous to all be


394 Fla.







Fla. 395


STATE v. GARCIA
Cite as, Fla., 224 So.2d 395


I


I







if





















rr
It


I





















I "







I,


joined in this suit he has not pleaded and
proven this conclusion to the degree of
certainty required. As stated in City of
Lakeland v. Chase Nat. Co., 1947, 159 Fla.
783, 32 So.2d 833, at 838:
"In class suits it is important to plead
and describe the class with certainty
whether the class be plaintiffs or de-
fendants and if they are considered so
numerous as to make it impractical to
bring them before the court it too should
be plead and proved with a fair degree
of certainty. More is required than the
mere pleading the language of the stat-
ute."
In other words, this court will not take
judicial notice of the number of property
owners on Crooked Lake.

With regard to the existence of an iden-
tifiable and proper class of defendants, it
appears that the complaint suffers a great-
er deficiency than it does with regard to
the purported class of plaintiffs. As in the
case of the class of plaintiffs, the complaint
does not allege that the named defendants
adequately represent the purported class of
defendants, and it does not allege the neces-
sity of suing them as a class, nor does it
properly allege that the class is too numer-
ous so as to make it impractical to join them
in this suit individually.

In addition, the purported group of de-
fendants is not identifiable with any degree
of certainty. They are not presently as-
certainable from the complaint. It could
be said that defendants are all those people
who are drawing water from Crooked Lake
to an extent which violates plaintiff's ri-
parian rights. But it is unknown who is in
this group and, by its very definition, it
would be impossible to ascertain its mem-
bers until after the present suit is dis-
posed of. In other words, as of the filing
of the complaint, there is no way to de-
termine who may ultimately wind up being
defendants in this suit. Therefore, these
unknown and presently unidentifiable mem-
bers would have no opportunity to defend
themselves in this suit, and may not even


know that their rights in Crooked Lake are
being challenged. A given property owner
would not know whether he was a party
plaintiff or defendant in this suit if he
draws any water at all from Crooked Lake.
Finally, it has not been alleged, nor is it
apparent from the complaint, that the rights
of this group of defendants are co-exten-
sive.
This cause is therefore affirmed in part
and reversed in part, and remanded for
further proceedings consistent with this
opinion and without prejudice to appellant's
right to amend concerning his allegations
that this is a class action.


MANN and McNULTY, JJ., concur.


O KEY NUMBER SYSTEM




STATE of Florida, Plaintiff,
V.
Domingo GARCIA, Defendant.
No. 69-417.

District Court of Appeal of Florida.
Third District.
May 29, 1969.


Original proceeding presenting for
decision a question certified by a judge of
circuit court of Dade County. The Dis-
trict Court of Appeal, Charles Carroll, C.
J., held that provision of statute disallow-
ing waiver of jury trial in cases where
sentence of death may be imposed is in
conflict with and has been superseded by
rule authorizing defendant tb waive a jury
trial with the approval of court and con-
sent of the state.

Decision certified for review on cer-
tiorari by Supreme Court.

Pearson, J., dissented.


- ---~-~


i Pll~l~~








46 SOUTHERN REPORTER, 2d SERIES


TAYLOR v. TAMPA COAL CO.

Supreme Court of Florida, Division B.
April 14, 1950.

Rehearing Denied May 26, 1050.
Suit by the Tampa Coal Corporr.tion an
another against Lev G. Taylor and others
to enjoin the named defendant from pump
ing water from a nonnavigable lake to irri
gate the named defendant's citrus grove
The Circuit Court for IIillsborough County
L. L. Parks, J., granted an injunction, an
the defendant Taylor appealed. The Su
preme Court, Sebring, J., held that thi
court properly enjoined defendant from di
averting water for irrigation during a dr,
season.
Decree affirmed.

I. Waters and water courses =9109
The rights of riparian proprietors t(
use of waters in a nonnavigable lake whicl
owed its supply solely to rainfall and seep
age were equal, and except as to the sup
plying of natural wants, including use o:
water for domestic purposes of homes oi
farms, such as drinking, washing, cooking
or for stock of proprietor, each ripariar
owner had right to use water in lake foi
lawful purposes so long as his use wa!
not detrimental to rights of other ripariar
owners.

2. Waters and water courses e=109
The fact that one riparian owner o:
land adjoining nonnavigable lake mal
choose to use water for recreational pur
poses while another might desire to diver
it for an artificial use, such as irrigation
did not give the latter a superior right t(
take water to the detriment of the former

3. Waters and water courses 0l109
Use of lands bordering on waters o
a nonnavigable lake for purpose of pleas
ure, recreation and health is a use of tho
lake that commands a remedy on behal
of a riparian owner for unlawful interfere
ence with the natural condition.

4. Waters and water courses C-109
The owner of land on the margin o
a natural lake or pond has the right t(
have natural level of water maintained sc
as to permit him to enjoy advantages at


tcndant upon riparian ownership and to
protect him from disadvantage of having
a strip of uncovered lake bottom left in
front of his property.
5. Waters and water courses :=114
Where r:o-navigabie lake owing its
Supply to rainfall and seepage was too
Small when at normal level to allow water
- to be pumped for irrigating purposes with-
Sout consequent damage to riparian owners
who used lake for recreation and relied
d on water for growth of ferns and trees,
- and another riparian diverted water to irri- '
e gate citrus lands, diverting riparian was
- properly enjoined from taking water for
Y irrigation during dry season when lake
was either at or below normal level.



o Mabry, Reaves, Carlton, Anderson,
SFields & Ward and Baya & Baya, Tampa,
" for appellant.
S Gibbons & Gibbons, Tampa, for appellee.

r SEBRING, Justice.
The appeal is brought by Lev G. Taylor,
one of the defendants below, from a final
decree of the Circuit Court of Hillsborough
County which enjoined him permanently
"from the pumping of water from the
lake involved in this cause for the purpose
of irrigating said defendant's citrus grove
f during any dry season, as ordered in said
r order of August 16, 1949."
The lake referred to in the decree is
t situated on four adjoining tracts of land
, owned separately by different persons in-
o eluding the appellant and the appellee. It
Comprises approximately 26 acres and is
shallow throughout its area. Such water
as is contained within its shores comes
Wholly from rainfall and seepage; there
being no water springs or other under-
f ground sources of supply in the lake bed.
/This small shallow body of water is not
Smeandered in any government survey, is
not navigable, and has no inlet or outlet
except for overflow water control.
f Tampa Coal Company, the owner of one
o of the tracts of land, uses the lake and its
o lands bordering thereon exclusively for
- recreational purposes-picnicking, bathing,


~slEII~P-PBP~BsP~I~ 1 --~ ~---- ---- ~


392 Fla.






TAYLOR v. TAMPA COAL CO.
Cite as 6i So.2d 3=2


boating and fishing-for its officers and
employees and their families. The owner
of another tract, Perry W. Hays, has a
permanent home on his property and grows
ferns on his land for commercial purposes.
The other owners, Raymond P. King and
the defendant, Lev G. Taylor, have com-
mercial groves on their property; the
grove owned by Taylor being approxi-
mately 6 acres in area and consisting of
500 trees of citrus.
In April 1949 the defendant Taylor be-
gan pumping water from the lake for the
purpose of irrigating his grove. This was
done at a time when, due to evaporation
because of extremely dry weather in the
area, the water in the lake was some 49
inches lower than normal water level.
Tampa Coal Company and Perry W. Hays
thereupon brought this suit to enjoin Tav-
lor from pumping water for this purpose,
on the ground that such pumping would
further deplete the waters of the lake and
would result, as to the lands owned by
Hays, in lowering the water table to such
an extent that the growth and productive
capacity of the trees and ferns on his land
would be seriously damaged and impaired,
and would result, as to the property right
of Tampa Coal Company, in lowering the
water level of the lake to such an extent
as to impair the Company's legal right to
the normal enjoyment of such pleasures as
boating, swimming and fishing.
After a hearing held before the Circuit
Court on the issues between the parties
the court entered a decree in which it
made the following findings:
"This Court in its order for temporary
injunction of April 14, 1949 expressed its
opinion as to the law governing the rights
of the Parties. The Court is still of that
opinion.
"The defendant is persistent in contend-
ing that he has the right to pump from
the lake all water that nmav be reason-
ably required to irrigate his bordering
grove of citrus trees and this right, he in-
sists, pertains without respect to adverse
material damage which the taking of such
water from the lake may do to other border-
ing property owners in their riparian rights.
46 So.2d-25 i


"The evidence discloses that the lake is
never more than 26 acres and throughout
its extent is shallow. At the time the de-
fendant began irrigating his grove in April
its waters had already naturally receded
49 inches below ordinary high level. The
daily lowering of the waters due to evapo-
ration and other natural causes approxi-
mated 1/2 inch, and the daily lowering of
the waters taken by the defendant. Taylor,
for irrigation purposes approximated that
due to natural causes. Obviously, if the
defendant were allowed to continue to ir-
rigate his grove bi-weekly as he contends
is necessary, it would not take a greatly
extended dry spell to very materially lower
the waters to such a point that plaintiffs'
fishing and swimming rights would be very
materially damaged. The evidence shows
that the waters of the lake became so low
and shallow that swimmers acquired silt
or dirt while swimming and were com-
pelled to bathe after swimming. Water
receded to such an extent that the use of
the dock in a normal manner was very
materially affected. Fishing was naturally
adversely affected. Considering all of the
circumstances reflected in the evidence, I
am of the opinion that during any dry
season the lake is entirely inadequate to
urnish water for the irrigation purposes
of the defendant without affecting the
rights of the plaintiff. Tampa Coal Com-
pany. Tampa Coal Company's use of the
lake is no different from the use of the
waters of so many lakes in this vicinity by
bordering owners, and although such use is
to a large extent in the nature of recrea-
tion, it, nevertheless, is entitled to the
same protection from damage and destruc-
tion as that of the defendant, Taylor, in
his agricultural pursuits.
"* I think the temporary order
of injunction should be made permanent
against the defendant, Taylor. The rec-
ord does not justify a permanent injunc-
tion against defendant, King. Counsel will
prepare a decree.
"Done and ordered at Tampa, Florida,
this 16 day of August, 1949".
Based upon these findings the Circuit
Court subsequently entered the final de-
cree from which the appeal is taken, en-


i ..~.iI


Fla. 3903








46 SOUTHERN REPORTER, 2d SERIES


joining the defendant from pumping water
from the lake for irrigation purposes dur-
ing any dry season.
As grounds for reversal of the decree
the defendant argues (1) that he did not
take more water from the lake than he was
lawfully entitled to take under the facts;
(2) that the inconvenience suffered by the
plaintiff Tampa Coal Company by reason
of the lowering of the water level of the
lake was too trivial and temporary to war-
rant an injunction against the use of more
water by the defendant to save his citrus
grove and fruit; (3) that the chancellor
was not justified in decreeing that the de-
fendant could not take water from the lake
for irrigating purposes in any dry season.
We think that all of these contentions
are met and overcome by the findings of
fact in the decree, which we find to be
amply supported by the evidence, and the
principles of applicable law, which are
correctly stated therein by the chancellor.
[1-4] It is the rule that the rights of
riparian proprietors to the use of waters
in a non-navigable lake such as the one
here involved are equal. Except as to the
supplying of natural wants, including the
use of water for domestic purposes of
home or farm, such as drinking, washing,
cooking, or for stock of the proprietor,
each riparian owner has the right to use
the water in the lake for all lawful pur-
poses, so long as his use of the water is
not detrimental to the rights of other ri-
parian owners. See Tampa Waterworks
Co. v. Cline, 37 Fla. 586, 20 So. 780, 33
L.R.A. 376, 53 Am.St.Rep. 262. It is im-
material what use is made of the property,
if the use be lawful, for there may be cer-
tain special rights peculiar to each shore
owner according to the nature of his pos-
session and the character and value of his
improvements. The fact that one riparian
owner may choose to use the water in the
lake for recreational purposes while an-
other may desire to divert it for an arti-
licial '-e such as irrigation, will not give
the latter a superior right to take water
to the detriment of the former, for in this


jurisdiction there is no distinction in re-
spect to use between a farm and a sum-
mer residence. The use of lands border-
ing on, and the waters of, such a lake, for
the purpose of pleasure, recreation and
health constitutes such a use of the lake
as to command a remedy for an unlawful
interference with its natural condition.
See Tilden v. Smith, 94 Fla. 502, 113 So.
708. As is pointed out in Farnham on
Waters and Water Rights, Vol. 2, page
1618: "The owner of land on the margin
of a natural lake or pond has a right to
have the natural level of the water main-
tained, so as to permit him to enjoy the
advantages attendant upon riparian owner-
ship, and to protect him from the disad-
vantage of having a strip of uncovered
lake bottom left in front of his property."
See also 56 Am.Jur. 543, 544, Waters, Sec-
tions 61, 63; 67 C.J. 852, Waters, Sec.
279.
[5] From the evidence in the record it
is plain that when the water of the lake
here involved is at normal level the lake is
too small in area and content to allow
water to be pumped therefrom for irri-
gating purposes without consequent dam-
age to other riparian owners. The rec-
ord shows, also, that as the result of the
diversion of the water by the defendant
for the purpose of irrigating his lands
the rights of the plaintiffs in the present
case were being seriously impaired and
damaged. We conclude, therefore, that the
circuit court acted correctly in enjoining
the defendant from diverting the water
for irrigation during any dry season
(which we construe from the evidence and
findings to mean, from diverting the water
for this purpose when conditions are such
that the lake is either at or below normal
water-level and the use thereof for irri-
gation purposes will operate to injury of
other riparian owners) and hence that the
decree appealed from should be affirmed.
It is so ordered.

ADAMS, C. J., and CHAPMAN and
HOBSON, JJ., concur.


-- rr Ir I It 1--' I


390 1 Fla.




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