708 113 SOUTHER
authorize the correction by amendment of a
mere clerical error in an indictment when
the matter is not one of substance, as, for
instance, the date of the term ,of court at
which the indictment was found. See State
v. Humphries, 35 La. Ann. .966; State v.
Jones, 9 N. J. Law, 2; Sharp v. State, 6 Tex.
App. 650; Murphy v. State, 36 Tex. Cr. IR.
24, 35 S. W. 174. The rule is also recognized
at common law, independently of statute.
Rex v. Darley, 4 East, 174, 102 Eng. Reprint,
796. See, also, the cases cited in the note to
Dodge v. U. S., 7 A. L. R. 1510. In con-
sonance with that rule, this court has held
in at least two cases that, where the record
proper shows that an information or indict-
ment was filed in open court during a term,
the clerical error of misnaming in the cap-
tion of the indictment the particular term at
which it was filed constitutes no ground for
reversing a judgment of conviction thereon,
where the error does not result in rendering
the indictment so vague, indistinct, and in-
definite as to mislead the accused and em-
barrass him in the preparation of his defense
or expose him after conviction or acquittal
to substantial danger of a new prosecution
for the same offense. Williams v. State, 42
Fla. 205, 27 So. 898; Sutton v. State, 84 Fla.
98, 92 So. 808. See, also, section 6064, Rev.
Gen. Stats. 1920. See, also, Burroughs v.
State, 17 Fla. 643,
In the indictment before us we find three
dates, one of which appears to be erroneous-
ly stated. Two of the dates, namely, the
date of the offense as charged in the body of
the indictment, and the date of the filing of
the indictment, are consistent. The indictment
was filed on'January 12, 1927,. charging an
offense to have been committed on January
10, 1927. An indictment speaks as of the
date of its filing, a date which in this in-
stance is consistent with the date upon which
the offense is alleged to have been commit-
ted. Under the circumstances, we think the
date stated in the caption is clearly a clerical
misprision. As the .defect 'is" one of form
only, and as it does not appear to us that
such defect could have reasonably misled
or embarrassed the accused, br that it ex-
poses him to substantial danger of a new
prosecution for the same offense, tlse same
affords no grounds for reversal, even if the
point can properly be raised by motion in
arrest of judgment, as to which ,see Mills
v. State, 58 Fla. 74, 51 So. 278; Barineau
v. State, 71 Fla. 598, 72 So. 179; Adams v.
State, 72 Fla. 32, 72 So. 473; Smith v. State,
72 Fla. 449, 73-So. 354; Sumpter v. State,
62 Fla. 98, 57 So. 202.
 The remaining contention of the de-
fendant relates to the sufficiency of the evi-
dence to sustain the verdict. We have read
the evidence with care. -The bill of excep-
tions discloses sufficient evidence from which
=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Index-
the jury might have legally found or intfe
all the essential elements of the offense..
which the defendant was found guilt
There is nothing in the record indicating
that the jury was influenced by consider%.
tions other than the evidence. Under sucd
circumstances, the order of the trial coin
refusing to grant a new trial for insufficien
cy of the evidence, will not be reversed, uj
less, after allowing all reasonable presnmp
tions for its correctness, the preponderance
of the evidence against the verdict is so-de
cided or manifest as to clearly convince the
appellate court that such verdict is wrong
and unjust. Parrish v. State. 90 Fla; 254
105 So. 130. The evidence in this case doe
not so impress us.
ELLIS, C. J., and BROWN, J., concur.
WHITFIELD, P. J., and TERRELL an
BUFORD, JJ., concur in the opinion.
TILDEN et al. v. SMITH.
Supreme Court of Florida, Division A.
(Syllabus by the Court.)
I..Waters and, water courses @=109-S
held not intended to prevent landowner frl
sinking well connecting with subterranal
waters to lower overflowing lake to normt
level (Rev. Gen. St. 1920, 90, 1191",Aa|
S1913, c. 6456).
It was not the purpose of section 11lwl
Gen. Stats. 1920, to prevent an owner of-J
fronting on a lake whose waters had risen
an abnormally high level by reason of unuft
ly heavy rainfall, causing overflow of hiii
and serious damage thereto as well-as thefil
of others abutting on such lake, from-sia i
a.well on his property connecting with-tb
terranean waters of the state for the p
of'lowering the waters of said lake to0
normal and customary level.
2. Waters and water courses
of statute is to prevent lowering of so
level of lake below ordinary high-watera.;
(Rev. Gen. St. 1920, 1190).
It was the evident intention of section
Rev. Gen. Stats. 1920, to prevent the low
of the normal level of a lake below its o
or average high-water mark.
3. Waters and water courses <=>109-lini
training average high-water mark of:
:evidence as to vegetation on banks is-ad
sible (Rev. Gen. St. 1920, 1190, 1191).
In ascertaining the normal level and '
age high-water mark of a lake, evident
be introduced as to the character of the .
station upon its banks.
Appeal from Circuit Court, Orange',
Sty; C. O. Andrews, Judge.
TILDEN v. SMITH
Suit by L. W. Tilden and others against C.
F. Mather Smith for an injunction. From a
judgment for defendant, complainants ap-
E. W. & R. C. Davis, of Orlando, for appel-
Massey, Warlow & Carpenter, of Orlando,
BROWN, J. The appellants filed their bill
in the court below to enjoin the appellee from
lowering the waters of Lake Johns, one of
the smaller lakes located in the lake region
of central Florida, which, owing to very
Leavy rainfall, had overflowed his property
and the property of some of his neighbors,
causing destruction of citrus groves, the sub-
verging of. appellee's golf course, the killing
of pine and other trees of natural growth,
and other property damage.
The bill alleges.that the appellants are all
owners of property abutting on Lake Johns,
which is of greater area than two square
miles and not included wholly within any
drainage district created by chapter 6456,
Acts of 1913, or.acts amendatory thereof, or
any other laws of the state of Florida; that
pp;ellee had caused to be drilled upon his
property on the eastern margin of the lake a
deep well to drain off the waters of said lake
i;to the underground waters of the state of
Florida, so as.to lower the level of the lake,
and had obtained from the state board of
health a permit to. do this; that the appellee
Lad not obtained the written consent of all
owners of property abutting on or bounded
.by said lake so to do; and that such acts of
the defendant were in violation of the laws
of the state of Florida and an infringement
upon the rights of appellants.
The answer of the appellee admitted that
he was drilling.a deep well upon his property,
but denied that it was for the purpose of re-
ducing the natural level of the lake below the
point which the growth and vegetation on the
nrargin indicated to be the ordinary high-wa-
ter point of the lake. The answer further al-
leges that during the past two years and
more, especially within the last six months of
the year in which the answer was filed, there
had been excessive rains which had caused
the lake to rise:above its natural boundaries
and to flpod- the adjacent territory, particu-
larly appellee's property known as the West
Orange Country Club, which, constructed
during a period of eight years at great ex-
rense. was flooded and rendered practically
worthless, and the several residences erected
thereon were no longer fit for habitation ow-
inz to the flooded condition of the land. The
ans-er also alleged that appellee's well was
ziz.ated at a point higher than the level of
the lake when within its natural boundaries.
The bill did not waive answer under oath,
"ad the answer was sworn to. On applica-
tion for injunction, the cause was heard on
testimony taken before the chancellor in per-
son and several affidavits submitted by the
parties. The chancellor denied the injunc-
tion and the complainants took this appeal.
This bill was evidently filed with reference
to sections 1190 and 1191, Rev. Gen. Stats.,
derived from an act of 1915. These two sec-
tions read as follows:
"1190. It shall be unlawful for any person,
persons, firm or corporation 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 the written consent of
all owners of property abutting on or bounded
by said lake: Provided, however, that this ar-
ticle shall not apply to any lake included wholly
within any drainage district created by chapter
6456, Acts of 1913, Laws of Florida, or acts
amendatory thereof, or under any other laws of
the state of Florida.
"1191, Courts of chancery shall entertain
suits by persons claiming to own lands abutting
on or bounded by lakes in the state of Florida,
of greater area than two square miles, to en-
join any person, persons, firm or corporation
from draining or lowering the level of such
While the testimony was in conflict on
some important points, there was evidence
tending to show that Lake Johns, which was
about seven miles long and about two or
three miles wide, was not fed by under-
ground springs as so many Florida lakes are,
but by the rainfall in the vicinity of the lake,
which had no stream's running into or out of
it. That there was considerable variation in
the average maximum -high-water mark of
the lake during a series of unusually dry
years as compared with a series of unusually
*wet years, but nevertheless the character of
the vegetation and trees around the lake gave
some evidence of an average or ordinary
high-water mark, and indicated that the wa-
ter level at the time appellee sunk his well
was considerably above such average level of
the lake as so indicated. See Martin et al.,
Trustees, etc., v. Busch, 112 So. 274, decided
at the January term, 1927. The appellants
Were owners of property abutting on the lake,
but so far as the evidence shows had not suf-
fered like some of their neighbors, including
appellee, from the unusually high water in
the lake. The appellee was likewise the own-
er of considerable property abutting on the
lake, which he used as a country club with'
a golf course, clubhouse, cottages for rent,
etc., which cost him in the neighborhood of
$150,000, and had yielded him some revenue
before the property was flooded by the rise of
the lake. That appellee began these improve-
ments in May, 1915, at which time he had a
survey made; that trees about the lake at
that point then showed that the water had
not been there for a great many years and the
level of the lake was about 5% feet below the
surface of the adjacent land, on which there
were trees about 35 years old. That. Lake
113 SOUTHERN REPORTER
Johns maintained its then level until about
1923, when owing to heavy rains it began to
rise, and during the equinoctial storms of
1923 it rose during that month alone 15.2
inches. During 1923 and 1924 the waters rose
about 7 feet and at the time the testimony
was taken in December, 1924, appellee's golf
course was submerged, the water was up to
the clubhouse porch, where boats were tied,
and all cottages or guest houses except one
were uninhabitable. That a Mr. Hart who
had homesteaded land nearby abutting on the
lake, in 1920, and had resided on it for 3
years, had been compelled to abandon it, the
water covering the floor of his house 1 inch-
es and killing several hundred trees on his
place. That a tract which had been used as
an aviation field by the government in 1917-
18 was submerged, and that on Mr. Seegar's
grove, on the east side of the lake, the water
had killed about 100 orange trees, 20 years
old, and nearly 800 small trees. That a Mr.
Brock, who had bought Turkey Island in
Lake Johns, in 1918, and used it mostly for
trucking, had planted some 300 fruit trees
and 100 Avocado pear trees. That the water
in Lake Johns was then about 7 feet lower
than at the time of his testimony; that the
lake had flooded 3 acres of his vegetable
land, had killed a dozen orange trees, and
injured many more which would probably die
unless relief was afforded; that his boat-
house, which 2 years before he could enter
standing upright in his boat, was completely
msbmerged and his pumphouse flooded. One
'Arthur Speir deposed that he had lived on
Lake Johns since 1881, and that the water
was now several feet higher than it had been
since that date; that there were pine trees
15 inches in diameter standing in the water
Sof Lake Johns at the time of his affidavit;
that pine trees were readily killed by stand-
ing water, and that if at any time prior to
the present the waters had risen for any
length of time so as to cover the ground on
which the trees were standing, the trees would
have died. The affidavit of C. S. Brock said
that the present condition was absolutely ab-
normal; that he had known Lake Johns and
Turkey Island for over 30 years, and that the
lake had never before done any damage to his
knowledge. Mr. S. J. T. Seegar, witness for
the defendant, testified that he had known
Lake Johns for 37 years and had never seen
the level of it so high as at percent; that the
high water had killed about 100 of his trees,
20 years old, and had seriously damaged
nearly 800 smaller trees.
There was testimony for the complainants
to the effect that they had lived for a great
many years on their lands adjoining the lake
and had selected their locations with refer-
ence to the frost protection afforded by the
lake to their vegetable crops; that the lake
had many times been as high as It was at the
time the bill was filed; and that it was to the
interest of those engaged in trucking on lands
adjacent to the lake to maintain it at the ex--
isting high level on account of the frost pro-
tection it afforded; and that if the level were -'
lowered during wet years, it would go en-
tirely too low during dry years to afford the
necessary frost protection.
On the whole, there was ample evidence to.
-ustain the action of the chancellor in d-ny.
ing the injunction. We quote as folli.ws from
the able opinion of the chancellor accompany.
ing his order refusing to restrain the appel.
lee from reducing the then existing water
level of the lake by the method pointed out .
in his answer and testimony:
"Injunction being a summary and severe m-
strument of courts, it should be used with great
caution, and the burden of proof is upon tLhoe
seeking to invoke it to clearly show that great
injury either temporary or permanent is im-
pending and can be averted only by irs use.
"The court finds that the word 'level' in hay-
ing reference to waters in lakes and p.njnj
seems to mean a line at which the water usually
stands when free from disturbing causes, or as
the usual or ordinary height, or as the mean
altitude or distance.
"The testimony in this case shows that the
waters of Lake Johns are admitted to be much
higher than its natural boundaries or level [or .-.
many years past, due to unprecedented rains for
the last year or six months; that this excess is,
shown to have killed orange trees, al-o pime-n-
trees many inches in diameter and several years
old. In this case the burden of proof fails to .
show, and the court is therefore not prepared
to hold, that the 'level' of Lake Johns is at the-
point where the surface now overflows much "
valuable property to the depth of several teet.
This is based upon the testimony of several -
older residents of that community, also upon
exhibits to the court showing the inundations
of large trees, groves, and buildings around the -
border of the lake resulting in serious damage
to the owners. .
"Equity cannot be invoked to prevent persons
from undertaking to minimize a serious damage
resulting from an abnormal condition merely for-
the purpose of minimizing or better securing';-
others from a mere contingent danger such as
frost protection, and more .specifically when it.
is shown that Lake Apopka, about 20 times rhe,
size of Lake Johns and nearly adjoining it, is':
on the north and west of the same property of
In 40 Cyc. p. 635, it is said:
"The owners of land abutting on a private-
lake have the same right to make a reasonable
use of the water for domestic, agricultural, and ..
mechanical purposes, but no one may appro-
priate or divert the entire body of water or
make such an excessive use of it as to deprive --S
others of their right to a reasonable participa-
tion in its benefits."
And again, on pages 638, 639, of the same
volume, it is said:
"A riparian or littoral owner whose right and
privileges in the waters of a lake or of the
stream issuing from it are unlawfully interfered
with by operations which result in draining tbh
TILDEN v. SMITH-
lake, lowering its natural level, or diverting the
water into another channel, may maintain an
action for damages against the wrongdoer. And
an action also lies against one whose operations
cause the waters to be set back and flood the
land of another. RWhere injuries to
riparian or littoral rights of any of the kinds
mentioned are permanent in charac-
ter, and such as could not be adequately com-
pensated by a recovery of damages, the party
affected may have the aid of a court of equity
to enjoin the unlawful acts of defendant." 40
See, also, 27 R. 0. L. 1190, 107.
But these propositions in the several cases
cited by appellants all seem to be based upon
such action as either raises or lowers the
natural or ordinary level of the body of
water. Thus in Sanborn v. People's Ice Co.,
S2 Minn. 43, 84 N. W. 641, 51 L. R. A. 829,
83 Am. St. Rep. 401, cited by appellants, it
"It is elementary that the shore owner may
prevent an injury to his land by the lowering or
raising of the waters beyond the natural limits
of low and high water mark, by artificial means,
not in the exercise of rights common to all,
unless such act be expressly authorized by law.
If there is a remedy for an injury
caused by the artificial raising of the water
above the natural line, thus flooding a meadow,
there is also a remedy to prevent exposure of
an unsightly and unhealthy marsh by artificially
drawing off the water below the natural level.
It is immaterial for what purpose the shore
land is used, if it be a lawful use. There is no
distinction in this respect between a farm and
a summer residence. Employment of contigu-
ous land for the purpose of pleasure, recrea-
tion, and health constitutes such a use of adja-
cent bodies of public water as to command a
remedy for an interference with its natural con-
See, also, Hazen v. Perkins, 92 Vt. 414, 105
A. 249, 23 A. L. R. 748, 752; Priewe v. Wis-
consin State Land & Improvement Co., 93
Wis. 534, 67 N. W. 918, 33 L. R. A. 645, text
651; Lakeside Irrigation Co. v. Kirby (Tex.
Civ. App.) 166 S. W. 715; State et al. v.
Great Falls Manufacturing Co., 76 N. H. 373.
83 A. 126.
[1,2] Appellants seem to proceed on the
basis that the 9ommon-law rule as set forth
in the authorities cited by them, when con-
strued in connection with the exact language
of section 1190 of Rev. Gen. Stats., means
that a riparian proprietor on a pond or lake
has no right to attempt to lower the level of
the lake under any circumstances, no matter
how unusual and unnatural the existing level
may be. He may not endeavor to restore it
to the usual or natural level. Appellants
contend that whatever the level of the water
happens to be, if caused by a natural cause
such as rainfall, that is the natural level or
at least the level intended by the statute.
If this theory were followed out to Its logical
conclusion, and Lake Johns should at some
time from excessive rains rise high enough
to cover the lands of the appellants as well
as those of the appellee, and those of all the
shore owners except one, whose land hap
opened to be on such a high promontory as to
be above the flood waters, this one individual,
refusing to consent, could under the statute
quoted prevent all of the other ripariart
owners from taking steps to lower the lake
down to its natural level and within its usual
boundaries. But neither the statute nor the
common-law rule .will bear any such strained,
construction. The law gives no man a vested
right in a flood or a freshet, or conditions
created thereby. As bearing on this point
see Goodrich v. McMillan, 217 Mich. 630,
187 N. W. 368, 26 A. L. R. 801, and notes.
Statutes must be construed in the light of the
common law, and the latter remains in effect
in so far as the same is not clearly incon,
sistent with the statute. It is also well
settled that government patents of lands
bounded by navigable waters convey titles
to the ordinary high-water mark of sucl
waters, and not to high-water mark tempora-
rily existing during flood or freshet or un-
usually high tides. 9 C. J. 182, 192, 193.
Flood waters which are of no substantial
benefit to a riparian owner or to his land, and
are not used by him, may be appropriated by
any person who can lawfully gain access to
the stream, and may be conducted to lands
not riparian, and even beyond the watershed
of the stream, without the consent of the ri-
parian owner and without compensation to
him. But where the water in question, al-
though in a sense high water or flood water
is nevertheless a part of the regular and
usual flow of the stream for a considerable
period of each year, and at a time when such'
flow is of substantial use and benefit to the
riparian lands, or the flow of such water in
its accustomed place is necessary to the
gathering of water In subterranean strata
from which the owners of the underlying
lands are entitled to take it, there is no right
of appropriation for nonriparian use as
against the riparian owners. See Gallatin v.
Corning Irrigation Co., 163 Cal. 405, 126 P.
864, and Ann. Cas. 1914A, page 74, with note
on page 82.
SBut the flood waters here in question were
not shown to be a natural annual occurrence,
or such as would create any rights of the
kind pointed out in the above case and the
many cases therein cited.
It is true that said section 1190 makes it
unlawful to lower the "level" of a lake with-
out first obtaining the written consent of all
property owners abutting on or bounded by'
the said lake. It will be observed that the'
statute does not make it unlawful to lower.
the abnormal level of a lake. It would be'
necessary to interpolate the word "abnormal":
before the word "level" in order to construe
this statute in such a way as to make unlaw-.
ful the act of the ap'pellee under the facts as:
found and construed by the chancellor. It is'
113 SOUTHERN REPORTER
said by counsel for appellee in their brief that
Dr. Johnson, in his famous dictionary of 1755,
defined the word "level" as "customary
height." We have not endeavored to verify
this definition, but we are satisfied that this
was what the Legislature had in mind, and
tbat it was not the intention of the Legisla-
ture, in using this word "level," to give per-
manency to or to prolong abnormal and un-
usual conditions, fraught with such damage
as the inundation of farm lands, homes, cat-
tle, and crops, but that the intention was to
prevent any person from lowering the normal,
usual, and ordinary level of a lake without
first obtaining the written consent of the own-
ers of property abutting thereon. This word
as used in the statute does not mean the ab-
normally low level of a lake during one of a
series of excessively dry years, or the abnor-
mally high level of a lake during an exces-
sively wet year or series of wet years, but the
average or mean level obtaining under fairly
normal or average weather conditions, allow-
ing the proper range between high and low
water mark in average years. "The term
'lake,' when used in reference to a navigable
body of fresh water in a conveyance describ-
ing one boundary of the land as being on the
lake, is to be construed as fixing the boundary
at the line at which the water usually stands
when free from disturbing causes. Seaman
v. Smith, 24 Ill. (14 Peck.) 521, 524; Fletcher
v. Phelps, 28 Vt. 257, 261." 5 Words and
Phrases, First Series.
 In Minnetonka Lake Improvement, 56
Minn. 513, 58 N. W. 295, 45 Am. St. Rep. 494,
the Supreme Court of Minnesota said:
"In the case of fresh water rivers and lakes-
'in which there is no ebb and flow of the tide,
but which are subject to irregular and occa-
sional changes of height, without fixed quantity
or time, except that they are periodical, recur-
ring with the wet or dry seasons of. the year
-high-water mark, as a line between a riparian
owner and the public, is to be determined by
examining the bed and banks, and ascertain-
ing where the presence and action of the water
are so common and usual, and so long continued
in all ordinary years, as to mark upon the soil
of the bed a character distinct from that of the
banks, in respect to vegetation, as well as re-
spects the nature of the soil itself. 'High-
water mark' means what its language imports
-a water mark. It is co-ordinate with the
limit of the bed of the water; and that only is
to be considered the bed which the water oc-
cupies sufficiently long and continuously to
wrest it from vegetation, and destroy its value
for agricultural purposes. Ordinarily the
slope of the bank and the character of its soil
are such that the water impresses a distinct
character on the soil as well as on the vegeta-
tion. In some places, however, where the banks
are low and flat, the water does not impress
on the soil any well-defined line of demarca-
tion between the bed and the banks.
"In such cases the effect of the water upon
vegetation must be the principal test in deter-
mining the location of high-water mark as a
line between the riparian owner and the publi
It is the' point up to which the presence and an
tion of the water is so continuous as to destroy
the value of the land for agricultural purpomi
by preventing the growth of vegetation, const.-
tuting what may be termed an ordinary agriculJ
tural crop." ..
In Dow v. Electric Co., 69 N. H. 498, 45
350, 76 Am. St. Rep. 189, the Supreme Court
of New Hampshire said:
"The high-water mark on fresh water river
is not the highest point to which the stream
rises in times of freshets, but is 'the line which e
the river impresses upon the soil by covering it
for sufficient periods to de rive it of egetatioa
and to destroy its value for agriculure"
In spite of the very able brief and argo.
nient submitted in behalf of the appellants
we cannot bring ourselves to accept the con.
struction of the statute for which they con. i
tend, and, inasmuch as there was ample evi.
dence to sustain the chancellor's conclusion, i'
on the facts, the decree appealed from will be
ELLIS, C. J., and STRUM, J., concur.
WHITFIELD, P. J., and BUFORD, J., con.
cur in the opinion.
McCAMY v. PAYNE.
Supreme Court of Florida, Division B. :
July 13, 1927.
(Syllabus by the Court.)
Guardian and ward e=105(l)-General dema r
rer to bill to cancel guardian's.deed, allegisgW
grounds for equitable relief, should have b-ee
SThe bill contains allegations constitution
grounds for equitable relief and the demurre
which was interposed should have been over
ruled on authority of the opinion in the a
of Wilkins et al. v. Deen Turpentine Co. 84
Fla. 457, 94 So. 508.
Appeal from Circuit Court, Orange
ty; Frank A. Smith, Judge.
Suit by James Edwin McCamy against L
cius L. Payne to .cancel a guardian's d
From a decree sustaining a demurrer to
bill and dismissing it, complainant ap
Reversed, with directions.
H. S. Glazier and Frank Riherd, both o
Tampa, for appellant. -
Massey, Warlow, Carpenter & FishbacA L '
of Orlando, for appellee.
BUFORD, J. In this case bill of complaint I
was filed seeking to procure a decree to canc 1' :
a deed made by a guardian conveying t0
interest of a minor in real estate.
=>=For other cases see same topic and KEY-NUMBER in all Key-Numibered Digests and Indexex