Title: Mabry, Reaves, Carlton, Anderson, Fields & Ward and Baya & Baya, Tampa, for appellant, Gibbons & Gibbons, Tampa, for appellee
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 Material Information
Title: Mabry, Reaves, Carlton, Anderson, Fields & Ward and Baya & Baya, Tampa, for appellant, Gibbons & Gibbons, Tampa, for appellee
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 - Mabry, Reaves, Carlton, Anderson, Fields & Ward and Baya & Baya, Tampa, for appellant, Gibbons & Gibbons, Tampa, for appellee (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 17
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004431
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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s~i-l-XI-i-- IUIIIIIIIY--Y^YI)IUPL~-_I


TAYLOR v. TAMPA COAL CO.

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

Rehearing Denied May 26, 1950.
Suit by the Tampa Coal Corporation and
another against Lev G. Taylor and others,
to enjoin the named defendant from lump-
ing water from a nonnavigable lake to irri-
gate the named defendant's citrus grove.
The Circuit Court for Hillsborough County,
L. L. Parks, J., granted an injunction, and
the defendant Taylor appealed. The Su-
preme Court, Sebring, J., held that the
court properly enjoined defendant from di-
verting water for irrigation during a dry
season.
Decree affirmed.

I. Waters and water courses I109 1 10
The rights of riparian proprietors to
use of waters in a nonnavigable lake which
owed its supply solely to rainfall and seep-
age were equal, and except as to the sup-
plying of natural wants, including use of
water for domestic purposes of homes or
farms, such as drinking, washing, cooking
or for stock of proprietor, each riparian
owner had right to use water in lake for
lawful purposes so long as his use was
not detrimental to rights of other -iparian
owners.

2. Waters and water courses -=109
The fact that one riparian owner of
land adjoining nonnavigable lake may
choose to use water for recreational pur-
Sposes while another might desire to divert
it for an artificial use, such as irrigation,
did not give the latter a superior right to
take water to the detriment of the former.

3. Waters and water courses C=109
Use of lands bordering on waters of
a nonnavigable lake for purpose of pleas-
ure, recreation and health is a use of the
lake that commands a remedy on behalf
of a riparian owner for unlawful interfer-
ence with the natural condition.

4. Waters and water courses =109
The owner of land on the margin of
Sa natural lake or pond has the right to
have natural level of water maintained so
as to permit him to enjoy advantages at-


4



A















Ji f


tendant 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 nonnavigable 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-
out consequent damage to riparian owners
who used lake for recreation and relied
on water for growth of ferns and trees,
and another riparian diverted water to irri- '"
gate citrus lands, diverting riparian was
properly enjoined from taking water for
irrigation during dry season when lake
was either at or below normal level.



Mabry, Reaves, Carlton, Anderson,
Fields & Ward and Baya & Baya, Tampa,
for appellant.
Gibbons & Gibbons, Tampa, for appellee.

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
during any dry season, as ordered in said
order of August 16, 1949."
The lake referred to in the decree is
situated on four adjoining tracts of land
owned separately by different persons in-
cluding 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-
ground sources of supply in the lake bed.
This small shallow body of water is not
meandered in any government survey, is
not navigable, and has no inlet or outlet
except for overflow water control.
Tampa Coal Company, the owner of one
of the tracts of land, uses the lake and its
lands bordering thereon exclusively for
recreational purposes-picnicking, bathing,


392 Fla.


46 SOUTHERN REPORTER, 2d SERIES

46 SOUTHERN REPORTER, 2d SERIES







Fla. 393


TAYLOR v. TAMPA COAL CO.
Cite as 16 So.2d 3 92


boating and fishing-for its officers and
employees and their families. The owner
of another tract, Perry W. Hays, has a
permane t home on his property and grows
ferns on his land for commercial purposes.
The other owners, Raymond P. King and
the def dant, Lev G. Taylor, have com-
mercial groves on their property; the
grove o vned by Taylor being approxi-
mately acres in area and consisting of
500 tree of citrus.
In April 1949 the defendant Taylor be-
gan piping 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, th; 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 Tay-
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
boag, 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 may 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 '


"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/' 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 hi-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
furnish 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-







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-
pose, so long as his use of the water is
not detrimental to the rights of other ri-
parian owners. See Tampa Waterworks
Co. v. Cine, 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-
ficial use 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
fiindngs to mean, from diverting the water
for this purpose .when conditions are such
that the l:ke is either at or lw-!ow normal
water-level and the use thereof for irri-
gation purposes will operate to injury of
other arparian owners) and hence that the
decree appealed from should be affirmed.
It is so ordered.

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


394 Fla.




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