Title: Cason v. Florida Power Co.
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Permanent Link: http://ufdc.ufl.edu/WL00004425/00001
 Material Information
Title: Cason v. Florida Power Co.
Physical Description: Book
Language: English
Publisher: Southern Reporter
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Cason v. Florida Power Co. (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004425
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



4 *4


CASON v. FLORIDA POWER CO.


(7t FI. 1)
C0SON v. FLOnRDA POWi:n CO.
(Suprcme Court of Florida. June 7. 1917. Re-
hearing Denied Oct. 18, 1917.)
(Syllabus by the Court.)
1. CONSTITUTIONAL LAW cST7 PROPERIn
I:r IuITS-LIMTTATIONS.
The inalienable rights that all men have of
acquiring, Ir.s--in!. and protecting property
under the ('ICostiuiu1ou is subject to the implied
limitation imposed by the principles of rnvern-
ment deduced from the or-anic law" that hu-
man rights a:d obligations are reciprocal aionmg
individuals, and that by due course of law pri-
vate ri;.hts yield to the requirements of the pub-
lie welfare.
2. CONSTITUTIONAL LAW c==S7 PrOPERTY
I IGITS-LI3ITATIONS.
All property is owned and used subject to
the laws of the land. Under our system of gov-
ernment property may be used as its owner de-
sires within the limitations imposed by law for
the protection of the public and private rights
of others.
3. CONSTITrTIONAL LAW C=S7 PROPERTY
RIGHTS-LIMITATIONS.
Those who own real estate may use it as
desired so long as the rights of others are not
thereby invaded. And there is no such inva-
sion when the use is authorized by law and is
reasonable with reference to the rights of oth-
ers.
4. CONSTITUTIONAL LAW i C S7 PROPERTY
RIGIITS--LI3TATIAONs.
Legality and reasonableness in the use of
property, as such use affects the public and pri-
vate rights of others, mark the limitations of
the owner's rights.
5. CONSTITUTIONAL LAW = 87 PROPERTY
RIGIITS-LIMITATIONS.
The reasonableness of the use of property by
its owner must of necessity be determined from
the facts and circumstances of particular cases
as they arise by the :'iplicntion of appropriate
provilsinus or principles of law and the dictates
of mutual or reciprocal justice.
6. CONSTITTIOUzNAL LAW C=S7--UsE OF PROP-
ERTY INJURY TO PROPERTY RIGIHS OF
TIIBD PERSONS.
Property owned by one party may be so
situated and conditioned with reference to the
property of another as that thie rights of owner-
ship and the uses of such properties are inter-
dependent or correlative. In sueh cases each
owner should so reasonably use his property as
not to injure the property rights of others.
7. WATERS AND WATEIl COURSES 01-PER-
COLATING S WATERS--U.SE OF LAND.
The property rights relative to the pass ae
of waters that naturally percolate throusli tie
land of one owner to and through the land of
another owner are correlative: and each lan:d-
owner is restricted to a reasonable use of his
property as it affects subsurface waters passing
to or from the land of auotter;
8. WATERS AND WATER COURSES =lf3 '. 107
(31-.MAINTENANCE OF DAM--LIAIIILITY TOR
tRESI'l.TING INJURY-4QI-'ESTIOYS FIOR J.TRY.
Where a ripriian owner by retetin mi nd
maintaining a dam across a stream raises the
level of the stream so that the flow of prrceolat-
ing waters from the adjoining lands of anoteier
owner are obstructed, and because of the dam
the waters from the stream percolate thrw.a-mh
the land of the ripari:int owner into such adj, iu-
ing land. causing its subsurface waters t,, rime
and remain so near the l.M rfa't. as to inilnjri tilC
land and the impnrov,-mrints nnl ncr-,p thel 'n'.
such.use by the riparian owner of rlih- land a:l
waters mny be unreisoni:ilo with rfrt.' rmnri to
the rights of the adjoining lan,!,lvner. a ii! thie


party erecting and maintaining the dam may be
liable in damages for such injuries to the adjoin-
ing property as are proximately caused by the
dam; .nd the questions of unreasonable u.se
and resulting damages should be submitted to
the jury upon appropriate instructions, when
there is any substantial evidence to sustain the
issue.
9. TRIAL =169-O-EVIDENCE-DIRECTED VEB-
DICT.
Where there is some substantial evidence
tending to prove the issue for the plaintiff. a
verdict should not be directed for the defendant.
Error to Circuit Court, Citrus County; W.
S. Bulloch, Judge.
Action by II. I. Cason against the Florida
Power Company. Judgment for defendant
on a directed, verdict, and plaintiff brings
error. Reversed.
John U. Bird, of Clearwater, for plaintiff
in error. Anderson & Anderson, of Ocala,
for defendant in error.

WHITFIELD, J. The amended declara-
tion herein is as follows:
"H. Casion, by his attorneys undersigned,
sues Florida Power Company, a corporation or-
ganized under the laws of the state of Florida,
for that the defendant on or about the -
day of 1910, erected a certain dam in
the Withlacoochee river, at a point in said river
between the counties of Citrus and Levy, in the
state of Florida, and by means of said dam ob-
structed the flow of the waters int said river and
hindered the waters above said dam from run-
ning and flowing at their usual and natural
level, as the same of right ought to have done,
and otherwise would have done, and by reason
thereof the water in said river above the dam
was raised above its usual and natural level
"Plaintiff avers that at the time of the ob-
struction of said dam and ever since then he
was, is and has been the owner. o and seised
and possessed in fee simple-of certain land,
said land being situated above the dam and de-
scribed as follows, to wit: The east half of
the southeast quarter and the southeast quarter
of the northeast quarter of section 17, township
17, range 17. all in Citrus county, state of
Florida: that by the damming up of the wa-
ters of said river, as aforesaid, the natural sub-
terranean drainage of said Iand was stopped,
obstructed and hindered and the waters of said
river so dammed up were caused to perc-d.ite
into and~ithrough the said land of the idilntiff,
all of which caused said land to be and remain
continually from the mouth of May, 1912, nm-
til the institution of this suit, saturated with
water and so wet as to render same totally un-
fit for cultivation or any useful purpose, and
that same has been rendered imrmiatently a
total loss to the plaintiff; that plaintiff at the
time of the construction of the said dam and at
the tie sa.f lund1 became saturated Airth wa-
ter. ans aforesaid, ,was cultivating and usinE
33 acres of said land as a farm, had fenced and
cleared 33 acres of the same. and ered there -
on the foulon wimu improvements, to wit:
One dwelling house and kitchen, of
the ve value of ............. ... 400 00
One barn. 12.x1, two stories........ 50 00
One sugar house, of the ve lue of...... F 00
,On>, smoke bl uce. of the value of..... fi. 00
One stable ha v liyft. of the value of... ;_0 00
)On., tenant Iln .11e. l,.'x-'!. of hile vN:luie of 25 00
.'met rods of Anmerican & liM.wol wire
fen',c. of thb. v;dlue of.............. 19- 00
Rail fence. .-1,os rails............... 1.5 00
S bearing orange trees, of the value of 2.j0 00


-I or other cas~ see same topic and KEY-NULMBER in all Key-Numbered Digests and Indeies


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7G SOUTHERN REPORTER


"Plaintiff avers that at the time said land be-
came saturated with water as .af'oresraid. he had
a growing crop on said land consisting of 10
acres of corn, 13 acres of piannutm, It acres of
sugar cane, 11/io acres of sweet potatoes. 6 i
acres of velvet beans. 51"' acres of pens, vegeta-
ble garden, hay and pa:stlur. all of the value
of $1.00( ; that by reason of the erection of said
dam and the dnnmming up of the waters of said
river as aforesaid, said land and the improve-
ments thereon have been damaged in the amount
of $10,000; that the plaintiff by reason of same
has sustained damage to the growing crop afore-
said in tlhe sum of $15,000.
"Wherefore plaintiff sues and claims $15,000
damages."
A demurrer to this declaration was over-
ruled. Trial was had on the plea of not guil-
ty and several special pleas, among the lat-
ter being the following:

"Second Amended Additional Plea.
"That the dam so constructed by the defend-
ant was built under lawful authority duly
granted to the defendant by the United States
of America, and that fendant at the ti
the said water was raised aove its natural level
and ever since was, has been and. now i. the
owner and n possession a0 e an npfwd
owners
by reason of the st t s am using
the same only in a lawful and reasonable man-
ner. Wherefore this defendant is not liable to
the plaintiff for the injury alleged."
After testimony was adduced by the par-
ties the court directed a verdict for the de-
fendant on which a judgment was rendered
for the defendant, and the plaintiff took
writ of error.
In substance the more materialllegations
bf the declarations are that the lfniait hy
Ianirnin- nn the waters of the Withlacoohee


river sto
natural -


. obstructed, and hindered the
rranean drainage of plaintiff'


land, an the waters so aamnme uP were
caused to percolate into and through nin-
tiff's land, all of which caused the land to
be and remain continually saturated_ wth


Water. ai


wet as to render t totally un-


It for cultivation or any useful purpose, and
tendered permanently total loss to the
plaintiff: that by reason of the dam the land
of plaintiff and the improvements and the
growing crops thereon have been damaged in
stated amounts.
The evidence does not show that because
of the dam affecting the percolating waters
the plaintiff's land is totally unit for culti-
vation or any useful purpose, or is a total
loss to the plaintiff. But under the allega-
tions of the declaration it may be shown, and
there is at least some evidence tending to
show, that t the level of
the water In r.t t flowf


ptola

an icaused


to the land and to the improvements and
crops thereon state a cause of action, and
the evidence tends to show damage as alleg-
ed, there was harmful error in directing a
verdict for the defendant.
[1] The inalienable rights that all men
have of acquiring. possessing, and protecting
property under the Constitution is subject to
the implied limitation imposed by the prin-
ciples of government deduced from the or-
ganic law that human rights and obligations
are reciprocal among individuals, and that
by due course of law private rights yield to
the requirements of the public welfare.
t2-5] All property is owned and used sub-
ject to the laws of the land. Under our sys-
tem of government property may be used as
its 'owner desires within the limitations im-
posed by law for the protection of the public
and private rights of others. Those who own
real estate may use it as desired so long as
the rights of others are not thereby invaded.
And there is no such invasion when the use
is authorized by law and is reasonable with
reference to the rights of others. Lealv
and reasonableness in the use of property, as
such use affects the public and Drivate rights
of others, mark the lnlltations of the owner's
rights. The reasonableness of the use of
property by Its owner must of noessitv he
determined -from the facts and circumstances
of particular cases as they arise, by the ap-
plication of appropriate provisions or pnn-
cinles of law and the dictates of mutual or
reciprocal Justice,
[6] Property owned by one party may be
so situated and conditioned with reference
to the property of another as that the rights
of ownership and the uses of such properties
are interdependent or correlative. In such
cases each owner should so reasonably use
his property as not to injure the property
rights of others.
[7] The property rights relative to the pas-
sage of waters tha naturally nreolate
through the land of one owner to and through


abuse of roertv as Ia fecssu r-
face waters passing to or from the land of
another.
'T^Ij here a riparian owner by erecting
and mainitainUh a dan across a stream ras-
es the level of the stream so that the flow of
ninti" otrn ? E-n l"Trm tnei a-nnfl nt ?inds


Sao1ner owner are ot)srucreu ani s because
of the dain the waters from nam er-
colate roh a-wn-
er into such adjoinlug land, causing Its sub-
stce waters to rise an remain soear


hthe sur:
La- inirrove


tifs land below surface, tus aisi e b the riparian
isbsraewT hter in plaintit's an r may be ureasc


un1illnamies to


u1 ilt.


rops te If the allegations of damage


face as to inure the land and the
.nt ndi r --h--inn l-h se


aters
ithle


rights o the adjointln lnowner, and the
party erecting and maintaining the dam may
le liable in damages for such injuries to the
adjoining property as are proxiuately caused


Ind and I


I


Ti-" | _


~i~,~YI*...Wri.....U~i~ii--iOlll~Yli~- -


(Fla.


r .r1.


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-~----~ ~.


CASON v. FLORTDA POWER CO.


by the dam; and the questions of unreason-
able use and resulting damages should be
submitted to the jury upon appropriate in-
structions, when there is any substantial evi-
dence to sustain the issue. See Moore v. Ber-
lin Mills Co., 74 N. H. 305, 67 Atl. 578, 11
L. R. A. (N. S.) 284, 124 Am. St. Rep. 908,
13 Ann. Cas. 217; Meeker v. City of East
Orange, 77 N. J. Law. 623, 74 AtL 379, 25 L.
R. A. (N. S.) 465, 131 Am. St. Rep. 798;
Straus v. American Publishers' Ass'n, 231 U.
S. 222, 34 Sup. Ct. 84, 58 L. Ed. 192, L. R. A.
1915A, 1099, Ann. Cas. 1915A, 369; Pixley v.
.Clark, 35 N. Y. 520, 91 Am. Dec. 72.
The averments of the special plea above
quoted that the dam was built under au-
thority granted by the United States govern-
ment, and that the defendant is a riparian
owner of the land "using the same only in a
lawful and reasonable manner," do not state
a defense. Authority to erect the dam does
not justify an unreasonable use of the prop-
erty as it affects the rights of others; and
the averment that the land of the defendant
is being used "only in a lawful and reason-
able manner" states a mere conclusion not
supported by any averment of facts.
[9] As there is at least some substantial
evidence tending to show injury to the plain-
tiff's land, and to the growing crops there-
on, by the rising of the subsurface waters
much nearer the surface which is caused by
the dam, the court erred in directing a ver-
dict for the defendant See Nelson v. Hall,
73 Fla. -, 74 South. 877; Anderson v.
Southern Cotton Oil Co., 73 Fla. -, 74
South. 975; Halle v. Mason Hotel & Inv. Co.,
71 Fla. 469, 71 South. 540; Glass v. Virginia-
Carolina Chem. Co., 73 Fla. -, 74 South.
981.
Under the general issue the questions as
to whether the erection and maintenance of
the dam across the river was a reasonable
use by the defendant of its property, and
whether the dam proximately caused the
percolating waters under the surface of the
plaintiff's land to rise and injure the land
and the growing crops thereon as alleged,
should have been submitted to the jury with
appropriate instructions. The verdict ren-
dered may- be reviewed by the trial court.
See Carney v. Stringfellow, 73 Fla. -, 74
South. 866.
Judgment reversed. All concur.

ELLIS, J. (concurring). The trial judge di-
rected the Jury to find a verdict for the 'de-
fendant. The declaration alleged that the
plaintiff's land was located near- a river;
that the defendant built a dam in the river be-
low plaintiff's land, which obstructed the
flow of the waters to such an extent that the
water level in the river opposite the plain-
tiff's land was raised, which prevented tihe
natural subterranean drainage of the plain-
tiff's land, and the waters from the river per-
colating and seeping through the ground have
saturated the plaintiff's land so that it is un-


fit for cultivation or for any useful purpose,
and the same has been rendered a total loss
to the plaintiff. A demurrer to the declara-
tion was overruled. There was a plea of not
guilty, and that the injury resulted from nat-
ural causes beyond defendant's control, that
the plaintiffs injury was due to his own neg-
lect, and that no damage was sustained by
reason of the defendant's acts. A "second
amended additional plea" averred that the
dam was constructed under lawful authority
granted to defendant by the United States
government, that the 'defendant is and at the
time the water was raised in the river was
the owner of the land overflowed and covered
by the waters of the river, and that the de-
fen'dant is using the same in a lawful and
reasonable manner. There was a motion
to strike this plea, which was denied, where-
upon the plaintiff joined issue upon the pleas
and went to trial. This action of the court
is made the basis of the second assignment
of error.
The plea differed from-a former plea which
was held to be bad on demurrer only in the
averment that the defendant was the owner
of the land overflowed and covered by the
waters of the river. Now the plea presented
the following points urged in avoidance of the
liability for the injury which the plaintiff
alleged had occurred: First, the dam was
built under authority from the federal gov-
ernment; second, the lands overflowed and
covered by the (imponded) waters of the river
belonged to the defendant; and, third, that
the defendant was "using the same (waters)
only in a lawful and reasonable manner."
The third statement is clearly a conclusion
of law, and by no means follows as a conse-
quence of the first statement. Because it
cannot be contended that the federal.govern-
ment by permitting one to construct a dam
in a navigable waterway thereby absolves the
favored one from all liability for injury re-
sulting from the saturation and overflow of
another's land lying adjacent. The defend-
ant may defend his position upon the doe-
trine of "reasonable user," but such defense
must consist of averments of fact showing
a reasonable user, and not conclusions of law.
What in any case is a reasonable use is or-
dinarily a mixed question of law and fact
to be submitted to the jury under proper in-
structions from the court. Bassett v. Salis-
bury M'fg. CCo., 43a T. 56F, S2 Am. Dee. 179;
Meeker v. City of East Orange, 77 N JLaw,
623, 74 Atl. 379. 25 L. R. A. (N. S.) 403, 134
Am. St. Rep. 798.
The second statement constitutes no de-
fense whatever if the doctrine of "reasonable
user" obtains in this state instead of the
English rule of absolute ownership. The
question presented by this case has not been
settled by any adljudicition in this court.
The case of Tlampa Waterworks Co. v. Cline,
37 Fla. 586, 20 South. 7SO, 33 L. R. A. 376,
53 Am. St. Rep. 202, dealt with a weil-deflned


Fla.)











76 S'OUT'IIEIRN Itua'OnITER


(Miss.


subterranean stream, and the maxim, "Sic Fstructtion from the court to de-termine wheth-
utere tuo ut non alienum l]:eis," was hell oir the undersnrface streams or veins in pl;ain-
to apply. The declaration in this case is so tiff's' land hadil l'enr obstructed by an unrea-
framed that the defendant Is charild: First. sonahle use by defendant of its land so as
with obstructing the natural subterranean to injure the plaintiff, or whether the waters
drainage of the plaintiff's land: and. second, pent up on the defendant's land soaked into
with e ii-inf tile pii.n up waters of the river the plaintiff's land, injuritngit as alleged.
to percolate or seep into anil tlhrounh plain-
tiff's land-in either case causing the land to (115 Miss. i58)
become saturated with water and unfit for SYKES v. MOOItE et al. (No. 195S4.)*
cultivation. The plaintiff was not a riparian (Supreme Court of Missisiippi, Division B.
owner, his land was not bounded upon the Oct. 15, 1917.)
stream, and he therefore could not call in
question the defendant's right to overflow the 1.PRorts A4'D NOST5) s 92 WA OFI
whole surface -af its lAnd t) -o tits lHe, -pr" A note by a widow in settlement of her de-
vided the water did not flow upon or soak ceased husband's debt, where the husband left
into the plaintiffs land. but the declaration A estate, was without consideration and void.
alleged that is what happened; the plea, 2. li A.X .NOTES C= 02-VALIDITY-MIS.
therefore, was no defense. Where a collector of a lodze used undue in-
As to that phase of the declaration which fluence to get the widow of a deceased to give a
complains in substance that the plaintiff's note for a debt of her husband to be paid out of
insurance money, by telling her she could not
land drained nto and through the defend- collet the insurance unless the note as gien,
ant's land adjoining and thence to the river, the defense of mistake is available.
and that the defendant by 'dannuing the wa- A l fm C C M
ters of the river obstructed the percolation A. J. Mcntre Chance onro o
of the surface waters, the plea is utterly in- ty; A J. McItyre, Chancellor.
Bill by T. B. Sykes against Katie Moore
applicable and constitutes no defense, be- Biby es nt KaeMoo
cause it admits in the second statement the and the Odd Frllons' Benait Association.
very thing which constitutes the plaintiff's Decree for defendants, and plaintiff appeals.
cause of action, viz., the stopping or obstruct-
ing the flow of subsurface waters on the Appellant, as complainant below, filed his
plaintiff's land, which percolated in subsur- bill of complaint against Katie Moore, the
face streams and veins through the defend- widow of Dock Moore, deceased, and against
ant's land to the river, by overflowing or the Odd Fellows' Benefit Association, a ne-
covering its land with water to such a height gro benevolent insurance order, in which
as to prevent the natural drainage of the Dock Moore, deceased, was insured in a sum
plaintiff's land by percolation. Under the not exceeding $1,000. The suit is based upon
doctrine of correlative rights to the control a promissory note executed by Katie Moore
of subsurface waters and the doctrine of in favor of T. B. Sykes, the complainant, aft-
reasonable user, the defendant had no right er the death of Dock Moore, and upon an in-
to set back the percolating waters upon the strument of writing assigning to the com-
plaintiff's land (see Meeker v. City of East plainant a partial Interest in the proceeds of
Orange, supra; Bassett v. Salisbury Mfg. Co., a policy or certificate of insurance which had
supra), unless the use to which the defendant been issued upon the life of Dock Moore, and
was putting his own land was reasonable; in which the widow, Katie Moore, was benefi-
while a cause of action is clearly stated in so ciary. The complainant, a colored merchant,
far as the declaration alleges that the pent- claimed an indebtedness evidenced by open
up waters of the river on the defendant's account against Dock Moore, the deceased
land soaked into anid upon the plaintiff's land, husband of the defendant Katie, and to col-
injuring it as alleged. Under tils view of lect this indebtedness he induced the said
the case the declaration was duplicitous. No defendant to execute to him the promissory
objection, however, was made to it upon this note in the sum of $250 and to assign to him
ground. to that extent an interest in the exempt in-
Now as I view the evidence there is enough surance. It appears that at the time Dock
to support a verdict for the plaintiff upon el- Moore died appellant was the local treasurer
other theory of the case made by tile declara- and collector of the local lodge of tile defend-
tion, while the "second amended additional ant insurance company, and one of the de-
plea" presented no defense, and tendered only lenses presented by the answer to the bill is
immaterial issues, and should have been the allegation that the complainant repre-
stricken upon the plaintiff's motion. See sented to Katie Moore that her husband was
Hubbard v. Anderson. 50 Fla. 219. 39 South. nonfinancial in the lodge, and that she, the
107. There was evidence to support the plea, defendant, would be unable to collect any-
and none to contradict it. Assuming as tile thing on the policy unless she would give to
court did that the plea was good, he directed appellant an interest in the proceeds; that
a verdict. I think this was error. The jury tile complainant enjoined upon her the neces-
should have been permitted under proper in- sity of concealing the policy, and of leaving
db=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Suggeutloa of error overruled Oct. 29, 1917.


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