Title: C. E. Koch, Appellant v. R. H. Wick, Chairman, and C. J. Wood, Clyde J. Keys, C. R. Fischer and S. S. Parry, Members of the Board of County Commissioners of Pinellas County, Florida, also Pinellas County, Appellees
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004430/00001
 Material Information
Title: C. E. Koch, Appellant v. R. H. Wick, Chairman, and C. J. Wood, Clyde J. Keys, C. R. Fischer and S. S. Parry, Members of the Board of County Commissioners of Pinellas County, Florida, also Pinellas County, Appellees
Physical Description: Book
Language: English
Publisher: Southern Reporter 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - C. E. Koch, Appellant v. R. H. Wick, Chairman, and C. J. Wood, Clyde J. Keys, C. R. Fischer and S. S. Parry, Members of the Board of County Commissioners of Pinellas County, Florida, also Pinellas County, Appellees (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 16
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004430
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

Cite as, la., S 7 o.'d 47

C. E. IOCH, Appellant,
R. H. WICK, Chairman, and C. J. Wood,
Clyde J. Keys, C. R. Fischer and S. S.
Parry, Members of the Board of County
Commissioners of Pinellas County, Florida,
also Pinellas County, Appellees.
Supreme Court of Florida.
Special Division B.
April 25, 1956.

Suit to enjoin county from pumping
large quantities of water from wells on
small strip of land containing less than four
acres leased by county adjoining land
owned by plaintiff and to recover reason-
able value of water taken. The Circuit
Court for Pinellas County, Orvil L. Dayton,
Jr., J., dismissed the complaint, and plaintiff
appealed. The Supreme Court, Thomas,
J., held that complaint stated a cause of ac-
tion for injunction.
Decree reversed with directions.

I. Waters and Water Courses -=101
In determining right of county to pump
large quantities of water from wells on
small strip of leased land over objection of
adjoining landowner, county was not in a
favorable position merely because the water
drawn was to be furnished to the public.

2. Waters and Water Courses -=101
Generally, the right of owner to draw
percolating water from his land is bounded
by reasonableness and beneficial use of the

3. Waters and Water Courses <=107(3)
Complaint stated a cause of action to
enjoin county from pumping large quanti-
ties of water for distribution and sale to the
public from wells on small strip of land,
containing less than four acres, adjoining
2,600 contiguous acres owned by plaintiff
on ground that extraction of so much water
from such a small parcel of land was not
for the beneficial use of such land and was

J. C. Davant, Clearwater, for appellant.

C. Ray Smith, J. D. Hobbs, Jr., and Cra-
mer, Smith & Hobbs, St. Petersburg, for

THOMAS, Justice.
The appellant was the unsuccessful plain-
tiff in the chancery court. He owns 2,600
contiguous acres of land in Pinellas County
which he claims contain "several. hundred
million gallons" of percolating water that
reaches his land by rainfall, and by seepage
from sources near and far rendering the
land extremely fertile.

The members of the Board of County
Commissioners had conducted a surveyof
the quality and quantity of available water
underlying the lands in that part of the
county where appellant's property is t-
uatd, na tt rht million gallons of
notable water could be drawn daily from
the a, and named the region "Mecca
Well Field." The Board then sank wells on
the road right-of-way adiacent tn the an-
pellant's property and began to nump water
from these wells b this enter as
enioined bv the court in an action brought
by the appellant to have his rights in the
real property and the underlving water
declared and to enjoin the Board from use
of the right-of-way for any except hirh-
way purposes.

Next the Board leased from a neiphbor-
ing owner a strip of land 60 feet in width
and 2640 feet in len adoiniannel-
lant's property and sank wells from which is
drawn a large volume of water for distribu-
tion to-indivduals and to municipalities in
inellas Couny including the county seat,
Clearwater. The project which, according
to the allegations of the complaint, is purely
commercial results in draining moisture
from his land and will, charges, reduce
its productivity to such degree that it will
become a "desert waste" causing him to'suf-
er irreparable injury. He rayed that the
operation of the pumps be enjoined and
that he be awarded a judgment for the rea-
sonable value of all water taken.

Fla. 47

UYWVA wok,4. Xu


Upon motion of the appellees, the chan- that American courts hav receded from
cellor dismissed the complaint, the old common law rule that an owner had
an unrestricted right to draw percolating
The appellant first presents the questions an unrestricted right to dra perolat
-water from his land and to adopt the rule
- whether or not the Board of County Com- *t i
r r nt t o C that the right is bounded by reasonableness
missioners should be restrained from pump- a nd beneficial use of the land. Perhaps,
; 1- ; +.- and beneficial use of the land. Perhaps,

A11C u.ulllJ JI^ls lllll'l l callrl.u vl U i ltJcilL.-
ing water from wells situated on 3.63 acres
of land solely for resale, not for use on the
land, thereby "depleting the percolating
water supply" from the adjoining lands,
and whether or not the allegations with ref-
erence to depletion disclose irreparable

[1] It seems that in judging the merits
of this controversy, the appellees are not in
a favorable position simply because the
water drawn is to be furnished the public.
Tampa Waterworks Co. v. Cline, 37 Fla.
586 2(0 q- 78n T P A 176 Cna A .

as appellant suggests in his brief, the old
rule has been modified because in the
development of machinery, electricity has
replaced manual power, and the amount of
water that may be drawn has increased
astronomically. The instant case is an
illustration of the need for the modern rule.
As we have written, the appellant alleges
that the appellees are taking vast quantities
of water each day with pumps located on
a piece of land less than four acres in area.
Obviously it is not produced for the benefit
of the owner of the small parcel so one of
the restrictions, benefit. disanoears. Itrm-

... .. .. ....... .. mains to be decided whether or not ap-
City of Shawnee, 179 Okl. 53, 64 P.2d 694.
City of Shawnee, 179 k. 53, 64 P.2d 694. elees operation is reasonable, or to be
Although the court in the former case was.
dealing with the diminution or diversion of more aurate whether the appellant should
r f a be allowed to try that issue.
water from a well defined subterranean .a w t tti

stream, while in the instant case the water
appellant alleges is beinp taken is nercolat-
Swater, the court quoted from Wheatley
augh, 25 Pa. 528, this language [37
Fla. 586, 20 So. 784]: "'percolations
spread in every direction through. the
earth, and it is impossible to avoid dis-
turbing them without relinquishing the nec-
essary enjoyment of the land. Accordingly,
the law has never gone so far as to recog-
nize in one man a right to convert an-
other's farm to his own use, for the pur-
poses of a filter.'"
In Cason v. Florida Power Co., 74 Fla.
1, 76 So. 535, L.R.A.1918A, 1034, the court
was considering damage to land by flood-
ing of a stream and commented that the
rights in respect of water which percolates
through the land of one owner to the land
of another are correlative and each is con-
fined to reasonable use of his property as
it affects subsurface water passing to or
from the land of another.

[2] The opinions expressed in these
cases harmonize with the pronouncement
in Labruzzo v. Atlantic Dredeing & Const.
Co., Fla., 54 So.2d 673, 29 A.L.R.2d 1346,

In Canada v. City of Shawnee, supra, the
Supreme Court of Oklahoma not only de-
cided that a municipality would be held to
the same rule as an individual but also that
subterranean waters are resumed to hi.
formed hv nercolation unle.., an iinder-
rround stream is shown to exist.
Appellees take the position that appellant
is not entitled to relief unless he "makes a
clear showing in his complaint that ir-
reparable injury will result from
the pumping operations," and they contend
that the "'reasonable use' rule does not per
se prohibit extraction of Lnrcolatin' water
for distribution and sale off the nrenmise"
To sustain their position thevy ite a dCiion
of the Supreme Court of New Ipro~,
Meeker v. East Orange, 77 N.J.L. 623, 74
A. 37), 25 L...A.,N.S., 465. But in the
New Jersey case the action was for dam-
age already done, while here the plaintiff
is attempting to prevent the injury tn h'i

[3] Inasmuch as the matter of henefit
to apDellees is eliminated, the sole remain-
ing question is whether or not the extract-
ing of so much water is reasonable. We

Cite as, Fla., 87 So.2d 49

think that in the face of the pleadines the
appellant should have been given the oppor-
tunity of producing evidence to substantiate
hischarge that it was not. And we do not
think that th iis such a case as would re-
quire the denial of remedy until such time
as the damage could be ascertained. If the
land should become barren, as the appellant
fears, the damage to that point could be
established but future damage would re-
quire an exploration into the obscure and
the speculative. It would be just to try
now the issues that may be formed b__an-
swer to the allegations of the complaint.
The decree is reversed with directions to
reinstate the complaint and to proceed
from that point.

DREW, C. J., ROBERTS, J., and
PRUNTY, Associate Justice, concur.


Darvell NEWMONS and Susie May New-
mons, his wife, Appellants,
TRICT, for the use and benefit of
Minerva G. MARTIN, Appellees.

Supreme Court of Florida.
Special Division A.
Feb. 29, 1956.

On Rehearing April 25, 1956.

Ejectment suit to recover the posses-
sion of certain lands. Judgment for plain-
tiffs in the Circuit Court for Palm Beach
County, C. E. Chillingworth, J., and the
defendants appealed. The Supreme Court
affirmed per curiam, and on rehearing, Ter-
rell, J., explained the meaning of "per
curiam" opinion and held that a deed exe-
cuted by the trustees of internal improve-
87 So.2d-4

ment fund pursuant to the statute was not
subject to the limitations imposed for the
recovery of the lands in possession of a
tax deed holder within the statute requir-
ing such a suit to be brought within four
years from the date of the tax deed.
Judgment affirmed.

I. Courts >107
A "per curiam" is the opinion of the
court in which the judges are all of one
mind and the question involved is so clear
that it is not considered necessary to elab-
orate it by an extended discussion and such
an opinion carries no less weight because
of the nomenclature that designates it as
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of "Per Curiam".

2. Courts =107
The attribute of a "per curiam" may
imply a variety of connotations and may
not only involve a review of questions of
fact, questions that involve nothing more
than the trial court's discretion or ques-
tions involving application of well settled
rules of law, and it may be employed to
dispose of cases in which the Supreme
Court says "affirmed" or "reversed" on the
authority of some other decided cases and
in fine, there is no limit to the grounds
that may prompt a per curiam opinion.

3. Taxation 0-805(I)
Chapter 194 defines the law governing
the sale, issuance of certificates and re-
demption of lands sold for nonpayment of
taxes and the limitations for recovery of
lands in possession of a tax deed holder
as defined by section 196.06 apply only to
lands sold for the nonpayment of taxes
in the manner provided by chapter 194.
F.S.A. 192.38, 194.01 et seq., 196.06.

4. Taxation 0=805(I)
Section 192.38 provides an entirely dif-
ferent method for the sale and disposition
of lands certified to the state for the non-

Fla. 49

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