Title: Labruzzo et ux. v. Atlantic Dredging & Const. Co., etc.
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004429/00001
 Material Information
Title: Labruzzo et ux. v. Atlantic Dredging & Const. Co., etc.
Physical Description: Book
Language: English
Publisher: Southern Reporter 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Labruzzo et ux. v. Atlantic Dredging & Const. Co., etc. (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004429
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
6rou~c4 W~ak-v-


LABRUZZO v. ATLANTIC
Cite as 54


LABRUZZO et ux. v. ATLANTIC
DREDGING & CONST.
CO., etc.
Supreme Court of Florida, Division B.
Oct. 5, 1951.
Rehearing Denied Nov. 20, 1951.
Action by Louis Labruzzo, and wife,
against Atlantic Dredging and Construction
Company, etc., for damages for allegedly in-
terrupting and diverting the natural flow of
underground waters which fed plaintiffs'
spring. The Circuit Court, Putnam County,
George William Jackson, J., rendered judg-
ment dismissing the complaint, and plain-
tiffs appealed. The Supreme Court, Roberts,
J., held that complaint, which alleged that
after defendant had initially and uninten-
tionally interfered with underground chan-
nel supplying water to plaintiff's spring on
adjoining land, and at a time when defend-
ant had not permanently damaged channel
or diverted and interrupted its flow, defend-
/ ant located channel and admitted that un-
derground stream was in fact the stream
that surfaced as plaintiff's spring, and that
defendant negligently excavated on its prop-
erty and caused permanent diversion of wa-
ter from its natural channel and destroyed
spring, stated a cause of action for inten-
tional invasion of water rights.
Judgment reversed and cause remanded
with directions.

I. Waters and Water Courses =-101
Generally,, right of landowner to sub-
terranean waters percolating through his
own and his neighbor's lands is limited to a
reasonable and beneficial use of such wa-
ters.

2. Waters and Water Courses =101
At common-law a person was subject to
S liability for interference with another's use
of water, either for an intentional invasion
when his conduct was unreasonable under
circumstances of particular case, or an un-
intentional invasion when his conduct was
negligent, reckless or ultrahazardous.
3. Waters and Water Courses =101
In absence of surface indications, an
S interference with subterranean water is
unintentional and. damage without injury
unless conduct resulting therein is negli-
gent, reckless or ultrahazardous.
54 So.2d-43


DREDGING & CONST. CO. Fla. 673
So.2d 673
4. Waters and Water Courses C101
The property rights relative to passage
of waters that naturally percolate through
land of one owner to and through land of
another owner are correlative, and each
landowner is restricted to a reasonable use
of his property as it affects subsurface wa-
ters passing to or from land of another.

5. Waters and Water Courses =103, 105
Where waters which form spring on
owner's land flow in underground stream
under adjacent owner's land to the point
where waters erupt and surface, adjacent
owner's knowledge that area is underlaid
by limestone strata commonly pierced with
water courses does not prohibit adjacent
owner from making excavations on its
property on the off-chance that the supply
of water to the spring may be diverted or
obstructed.

6. Waters and Water Courses <=>107(3)
A complaint alleging that waters which
formed spring on plaintiff's land flowed in
underground stream under defendant's ad-
jacent land to point where waters erupted
and surfaced, and that defendant knew or
should have known that area was under-
laid by limestone strata which was com-
monly pierced with water courses, and that
defendant negligently excavated on its prop-
erty and thereby interrupted and diverted
the natural flow of underground' waters
which fed plaintiff's spring was insufficient
to state a cause of action for negligence.

7. Pleading C=214(1)
Allegations of plaintiffs' declaration
must be taken as true on demurrer.

8. Waters and Water Courses <=107(3)
Complaint, which alleged that after de-
fendant had initially and unintentionally
interfered with underground channel sup-
plying water to plaintiffs spring on adjoin-
ing land, and at a time when defendant had
not permanently damaged channel or di-
verted and interrupted its flow, defendant
located channel and admitted that under-
ground stream was in fact the stream that
surfaced as plaintiff's spring, and that de-
fendant negligently excavated on its prop-
erty and caused permanent diversion of wa-
ter from its natural channel and destroyed







54 SOUTHERN REPORTER, 2d SERIES


plaintiff's spring, stated a cause of action
for intentional invasion of water rights.
9. Waters and Water Courses CI107(3)
In action by owner of spring against
adjacent owner for damages for interrupt-
ing and diverting natural flow of under-
ground waters which fed spring, question
whether adjacent owner's conduct in exca-
vating on its property was unreasonable
under circumstances was for jury.


Walton & Walton, J. V. Walton and Kate
L. Walton, all of Palatka, for appellants.
H. E. Merryday, Palatka, for appellee.

ROBERTS, Justice.
This case is here on an appeal from a
final judgment entered on demurrer to
plaintiffs' second amended declaration after
plaintiffs declined further to amend.
The facts alleged by plaintiffs are in sub-
stance as follows: Continuously since 1918
plaintiffs have owned and occupied as their
homestead a parcel of land in Putnam
County on the east bank of the St. Johns
River. From time out of mind-until inter-
rupted by the acts of defendant- as ig
Surfaced and erupted on plaintiffs' land. at
the rate of 207 gallons a minute, and flowed
on across plaintiffs' land in a surface stream
to the river. The defendant owned land
adjacent to and upstream from that of
plaintiff, both parcels being bounded on the
west by the St. Johns River. In 1946 the
defendant began the excavation of a wide
and deen cut into the bank of the river on its
own land for ihe nurLon- of constructing
yach asi, using the spoil as fill dirt to
make a private landing strip for airplanes.
The excavation extended some eight or
twelve feet below river level; and in order
to have a dry hole to work in, the defendant
built a coffer dam and onernteddro s n
within its confines, thus withdrawing there-
from the waters that leaked, seeped or
flowed into the excavation.
The plaintiffs alleged in the first count
of their declaration "that the waters form-
ing said spring flowed in an underground
stream through and under the said lands of
defendant and through and under the lands


of plaintiffs to the point where they erupt-
ed and surfaced; that it is a
well-known and readily asccrtainable fict
that the area within which the nfrnnertr of
the parties are sihamte is largely underlail
by a limestone strata, which is a water bear-
in' strata that is commonly niered and rid-
dled with und.erPro'r d caverns and water
courses, all of which was or should have
been known to the defendant nrior to com-
mencing the excavation and was definitely
and certainly learned andl lnowrn cn hpr._
after; that, notwithstanding its knowledge
of the existence and location of plaintiffs'
spring and of the limestone strata under-
lying the lands of the parties; and not-
withstanding the defendant knewor should
have known that the underground strer
r strata which fed tho nlaintiff' n; i nrng
might and nrnhahlv dAl f~n thron,,rh an
under its lands, the defendant,
in the course of its said excavation work
and deep below the natural surface of the
land, so carelessly and negligently excavat-
ed dirt and rock and pumned water from
the hole it wa2s dirgvinp, that it, hrnk into
and interrupted a diverted the natural
flow of the underground waters that there-
tofore, from time out of mind had fed
plaintiffs' shrine; that the de-
fendant with knowledge of all these things
continued to construct its said yacht basin
and so carelessly and negligently dug and
-excavated that it permanently and com-
pletely interrupted and diverted the nat-
ural flow of said waters to plaintiffs' spriir
and destroyed the,same, *" to the
damage of plaintiffs.
In their second count the plaintiffs al-
leged, in addition to the above, "that de-
fendant, in excavating the said yacht basin,
located and found the underground li!--
stone channel of the waters of plainti'if
spring and recognized and identified the
waters from said underground channel ia
the waters of plaintiffs' spring and k:icw
and admitted to plaintiffs that the un'cr-
ground stream whose channel it so local, !
and identified was in fact the undergrc.::d
stream that surfaced as plaintiffs' :idl
spring; that, at such time, defendant had.
not permanently damaged and injured the
channel of said underground stream or per-


0.


r


674 Fla.









tnanently diverted and interrupted its flow,
but that the natural course and usual flow
of said underground stream was interrupt-
ed and diverted only when the defendant
caused its great pumps to work to give it a
dry hole for further excavations; that de-
i,.ndant was and is an engineering compa-
ny, experienced in dredging and excavat-
ing; that defendant, after locating the said
underground stream, as aforesaid, acknowl-
edged to plaintiffs that such underground
stream was the spring of plaintiffs' and as-
sured plaintiffs that it would do no per-
manent damage to plaintiffs' spring in its
further excavations, and would restore the
same to its usual, natural channel, and
agreed and undertook to save plaintiffs and
plaintiffs' said spring harmless from any
injury or damage occasioned, by the said
excavation and to recompense plaintiffs at
the rate of $100 a month for their loss of
the use and value of the waters of their
spring for the months during which the
flow thereof was prevented by the pumping
and excavation; and thereafter with full
knowledge and proceeding at its own risk,
the defendant so carelessly and negligently
dug and excavated and pumped water from
the basin it was constructing that the flow
of the said underground water was perma-
nently and completely diverted and inter-
rupted from its natural channel and its
natural surfacing on plaintiffs' lands," to
the injury of plaintiffs.
The defendant's demurrer to plaintiffs'
second amended declaration was grounded
principally on the fact that it affirmatively
appeared in plaintiffs' declaration that there
were no surface indications of the exist-
ence of a well-defined subterranean stream
feeding plaintiffs' spring; and that, in law,
the source of such spring should be con-
sidered percolating waters, the flow of
which had been interrupted by defendant in
the "lawful and reasonable use" of its prop-
Trty, so that under the "reasonable use"
rule. it is contended, "plaintiffs have no
cause of action or remedy against the de-
ft nlaant for the alleged acts and doings of
the defendant." The defendant also al-
'lettd that the existence of the source of
u-'ipply of the spring was discovered in the
course of the excavation and not prior to its


Fla 675


commencement, and that "it does not appear
that the damage to plaintiffs' spring and
property could have been avoided at a rea-
sonable cost and by means which would
permit the contemplated use of its property
by defendant."
The plaintiffs and the defendant do not
agree on the question which should be de-
cided by this court; but the ultimate ques-
tion is, of course, whether the plaintiffs
stated a cause of action for damages.
[1] At the outset, it should be noted
that we are not here Aaling, with a nrnhlpm
involving a proprietarv competition over
the aer itself-that is to say, there is no
conflict here between the respective rights
of persons to make competing proprietary
uses of subterranean waters to which they
both have access. In such cases the nres-
ent trend amonn the courts of this country
is away from the old common-law rule of
unqualified and absolute riht of a land.
owner to intercent and draw from his land
the percolating waters therein; and the -
er cases hold that ther rht f.a Ian n
tahisrkainasn water wr n.itinrrl th nGmh
,w nd i...n.... na.... .ri l.and.Jim+-ri
to a reasonable and beneficial useP nf -~
M ate RoIthrauff v. Sinking Spring Wa-
tero., 339 Pa. 129, 14 A.2d 87; Nashville,
C. & St. L. Ry. v. Rickert, 19 Tenn.App.
446, 89 S.W.2d 889; Canada v. City of
Shawnee, 179 Okl. 53, 64 P.2d 694; Re- F,
statement of Torts, Vol. IV, page 344. See
also the cases collected in the annotation
beginning at page 1398 of 55 A.L.R.
It is pointed out by the annotator at page
1404 of 55 A.L.R. that "Practica ll t
cases in which this rle of corrlative
rights or reasonable use has been applied
were cases in which percolatinE water was
being -traLcted from lanr fnr the nurmae
of sale at a distance for use in suing
water to cities and towns, orn irritating
other lands than those in which such water
was found," which are generally held to be
urreasonag l uses of ercolating wer.
See also Canada v. City of Shawnee, supra.
[2,3] In the instant case, however, we
are concerned with an interference with
plaintiffs' use of the spring on their land,
caused by conduct of the defendant not in-


LABRUZZO v. ATLANTIC DREDGING & CONST. 00.
Cite as G1 So.2d 673







54 SOUTHERN REPORTER% 2d SERIES


evolving a competing use of water and in
which the effect on the subterranean water
is only incidental to the defendant's use of
its land. Obviously, then, the rule of "rea-
sonable use," as engrafted upon the old
common-law rule of absolute and unquali-
fied ownership of percolating waters, in-
sofar as the proprietary beneficial 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 affected. Under
such circumstances, even at common law,
a person was subject to liability for inter-
ference with another's use of water, either
for (1) an intentional invasion when his
conduct was unreasonable under the cir-
cumstances of the particular case, or (2) an
unintentional invasion when his conduct
was negligent, reckless or ultrahazardous.
Restatement of Torts, Vol. IV, Section 849
and Sections 822-840. In the absence, then,
of surface indications, an interference with
subterranean water is, of course, uninten-
tional and damnunu absquc injuria unless
the conduct resulting therein is negligent,
reckless or ultrahazardous. Wheatley v.
Baugh, 25 Pa. 528, 64 Am.Dec. 721; IIalde-
man v. Bruckhart, 45 Pa. 514, 84 Am.Dec.
511; Collins v. Chartiers Valley Gas Co.,
131 Pa. 143, 18 A. 1012, 6 L.R.A. 280, 17
Am.St.Rep. 791.
While there is no previous decision of
this court exactly in point, this court has
heretofore dealt with the general question
involved, that is, a non-trespassory inva-
sion of a person's water rights by another's
use of his property in which the effect on
subterranean water is only incidental.
[4] Thus, in Cason v. Florida Power
Co., 74 Fla. 1, 76 So. 535, 536, L.R.A.1918A,
1034, in which the plaintiff alleged that de-
fendant's construction of a dam had ob-
structed the flow of surface and percolating
waters on plaintiff's land to his injury, this
court said that "The property rights rela-
tive to the passage of waters that naturally
percolate through the land of one owner
to and through the land of another owner
are correlative; and each landowner is re-
S tricted to a reasonable use of his property
as it affects subsurface waters passing to
or from the land of another." (The cm-


phasis is supplied.) It was held that the
question of whether the erection of the dam
was a reasonable use by the defendant of its
property, and whether the dam caused the
injury, should have been submitted to the
jury under appropriate instructions.
Again, in Pensacola Gas Co. v. Pebley,
25 Fla. 381, 5 So. 593, 595, involving the
pollution by defendant of subterranean
percolating waters feeding plaintiff's well,
this court held that "The appellant gas
company had the right to use the water
in and about the gas-works as they pleased,
but they had no right to allow the filthy
water to escnpe from their premises, and
to enter the land of their neighbors." And
while this might have been considered an
unintentional invasion of plaintiffs rights,
since the pollution was of subterranean
percolating waters, this court held that
"the escape of the refuse filthy water [was]
in itself an evidence of negligence on the
part of the gas company."
On the question of negligence, the
Pennsylvania court in Collins v. Chartiers
Valley Gas Company, supra, was concerned
with the liability of the defendant gas
company for damages to plaintiff's well
caused by the tapping of a vein of salt
water by defendant in boring a gas well,
which salt water rose and mingled with
the fresh water and ruined plaintiff's well.
The court said that there was evidence that
the defendant should have known that the
well would tap the salt water and thus
injuriously affect surrounding water wells,
and that this could have been prevented at
a cost of from $50 to $250 in properly
casing the well; and that thr defendant,
although notified of the injurious effect of
the salt water, failed to remedy the matter.
In reversing a verdict and judgment for
defendant, the court said [131 Pa. 143. 18
A. 1013]: "* the use which inflicts
the damage must be natural, proper, anJ
free from negligence, and the damage un-
avoidable. Negligence in 'this
sense is the absence of such care and re-
gard for the rights of others as a prudent
and just man would and should have in
the same situation. If the plaintiff showed
that the injury was plainly to be anticipat-
ed, and easily preventable with reasonable


676 Fla-






LABRUZZO v. ATLANTIC
Cite as 54
care and expense, he brought himself with-
in the exception of all the cases from
Wheatley v. Baugh, [supra] to Pennsyl-
vania Coal Company v. Sanderson [113 Pa.
126, 6 A. 453, 57 Am.Rep. 445]".
[5,6] Since the plaintiffs in the first
count of their declaration have stated a
cause of action, if at all, for an uninten-
tional invasion of their water rights, the
question then is: Do the allegations of such
first count sufficiently show actionable neg-
ligence on the part of defendant? We do
not think so. Even though the defendant
knew or should have known that "the area
within which the properties of the parties
are situate is largely underlaid by a lime-
stone strata, which is a water bearing strata
that is commonly pierced and riddled with
underground caverns and water courses,"
this does not mean that it is prohibited from
making any excavations on its property on
the off-chance that the supply of subter-
ranean water to plaintiffs' spring might be
diverted or obstructed. If the plaintiffs'
spring was fed by perco!ating waters, it
could not "plainly be anticipated" that the
defendant's excavations and pumping ac-
tivities would dry up the spring: and if
the spring was fed by an underground
stream, in a well-defined channel, such
stream might have come in to plaintiffs'
spring from any direction and not neces-
sarily under the defendant's land. There
being no showing, then, of "the absence of
such care and regard for the rights of oth-
ers as a prudent and just man would and
should have in the same situation," the de-
murrer to the first count of plaintiffs' dec-
laration was properly sustained.
[7,8] As to the second count, the plain-
tiffs have alleged, in substance, that after
defendant had initially and unintentionally
interfered with the underground channel
supplying water to the spring, and at a time
when defedmant had not permanently dam-
aged and iiln ',rcd the channel of the under-
gronmu streamc or permnancntly diverted and
interrupted its flow, "defendant *
located and found the underground lime-
stone channel of the waters of plaintiffs'
spring and recognized and identified the
waters from said underground channel as
the waters of plaintiffs' sprint and knew


DREDGING & CONST. CO. Fla. G77
So.2-d G73
and admitted to plaintiffs that the under-
ground stream whose channel it sn located
and identified was in fact the underrougind
stream that surfc;dl a nMainti-ffi' said
sp ;" and that "thereafter with full
knowicdge and proceeding at its own risk,"
the defendant proceeded wihl its excavation
and pumping activities, resulting in the
complete and permanent diversion of the
water from its natural channel and destroy-
ing plaintiffs' spring.
Since the allegations of plaintiffs' dec-
laration 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 par-
ticular circumstances.

In Zimmerman v. Union Paving Co., 335
Pa. 319, 6 A.2d 901, 903, the facts were
similar to those in the instant case, and
were as follows: The defendant paving
company began the excavation of a borrow
pit near a spring and shortly observed that
water was seeping through the side of the
pit. The plaintiff, who piped water from
the spring in such manner that his use
thereof was dependent upon the force of
gravity, warned the defendant of his rights
in and to the water from the spring; but,
despite such warning, the company con-
tinued the excavation, resulting in a lower-
ing of the outlet of the spring and disrupt-
ing the plaintiff's piping system. The Penn-
sylvania court discussed the rules of lia-
bility as follows: "Ordinarily, when a
spring depends for its supply upon filtra-
tions and percolations through the land of
an adjoining owner, and in the use of that
land for lawful purposes the spring is de-
stroyed, such owner, in the absence of mai-
ice and negligence on his part, is not lia-
ble for the damage occasioned, which is
damnum absque injuria. The rea-
son upon which this principle is founded
is that the subterranean sources of a spring
are not perceptible, and damage caused by
operations in their vicinity cannot usually
be foreseen or avoided: where the exist.
ence, extent and location of such sources
are unknown, any other rule would pre-
vent the normal and legitimate develope-







54 SOUTHERN REPORTER, 2d SERIES


ment of the land. But if the act which cause remanded for further proceedings
causes the damage is persisted in after its consistent herewith.
effect has become apparent, or is merely Reversed and remanded.
wanton and of no use to the owner who
performs it, or is attended by negligence, SEBRING, C. J., and CHAPMAN and
the law is otherwise. If an in- ADAMS, JJ., concur.
jury to a neighbor's rights in wells or a
water supply is plainly to be anticipated,
and can be avoided by the exercise of rea-
sonable care and at reasonable expense, a uSSS
land owner is not exempt from all obliga-
tion to pay regard to the effect of his op-
erations on subterranean waters. *
Since, in the present case, defendant had
ample warning of the likely result if the MALONEY v. McBRIDE'S, Inc.
excavation was continued in the direction
of the spring, it cannot, in the face of its Supreme Court of Florida, en Bane.
wilful action after such notice, claim im- Aug. 28, 1951.
munity from responsibility merely because Rehearing Denied Nov. 20, 1951.
the water diverted was of subterranean
origin." Eugenia E. Maloney, as executrix of the
estate of Patrick H. Maloney, deceased,
[9] We think that the language of the brought an action on a promissory note
4 Pennsylvania court, last above quoted, is against McBride's, Inc., a corporation organ-
,equally applicable to the instant case, and sized and existing under the laws of the state
that the defendant here should be held lia- of Florida. The Circuit Court for Dade
County, Marshall C. Wiseheart, J., rendered
ble as for an intentional invasion of plain- u ., n
S.a judgment adverse to the plaintiff and the
* tiffs' water rights, if its conduct under all plaintiff appealed. The Supreme Court, Per
the circumstances was, in fact, unreason- Curiam, held that evidence established the
: able. The allegation of defendant in its consideration of the note.
- demurrer that the interruption of the flow Judgment reversed with directions.
of water to the spring was occasioned by
S"the lawful and reasonable use by defend- Bills and notes 9518(1)
ant of its property" states a mere conclu- In action on a promissory note evidence
sion not supported by any averment of established consideration of the note.
facts, and the question of whether or not
the defendant's conduct was, in fact, un-
reasonable under all the circumstances is Watkins & Cohen, Tallahassee, Stanley
for the jury to determine under appropriate B. Richard and Harold Ungerleider, Miami
instructions. Cason v. Florida Power Co., Beach, for appellant.
74 Fla. 1, 76 So. 535, L.R.A.1918A, 1034; L. Earl Curry, Miami, for appellee.
Seaboard All Florida Ry. Co. et al. v. Un-
derhill, 105 Fla. 409, 141 So. 306. As stat- PER CURIAM.
S ed in the Restatement of Torts, Vol. IV, This is an action on a promissory note
page 241: "The unreasonableness of inten- which comes here for the second time. See
tional invasions is a problem of relative Maloney v. McBride's, Inc., Fla., 44 So.2d
values to be determined by the trier of fact 296. On the former appearance we held the
in each case in the light of all the circum- proof adduced was sufficient to establish the
stances of that case." execution and delivery of the promissory
For the reasons stated, it was error to note as made issues by pleas one and two
sustain the demurrer to the second count of of the defendant and remanded the cause
plaintiffs' declaration, and the judgment ap- for trial on the question of the consideration
pealed from is therefore reversed and the of the note, which was made an issue by the


!___IIII1___~WLWIUL_----l --Lili~lllll- II


678 Fln.




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs