Title: Walter L. Brown, on behalf of himself and all others similarly situated, Appellant, v. Oren A. Ellingson, William E. Cobb, the Citrus Grove Development Company, a Fla. corporation, W. J. Mann, J. J. Frekehayes, and Richard F. Dopler, individually and as representatives of a class to which they belong, Appellees
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 Material Information
Title: Walter L. Brown, on behalf of himself and all others similarly situated, Appellant, v. Oren A. Ellingson, William E. Cobb, the Citrus Grove Development Company, a Fla. corporation, W. J. Mann, J. J. Frekehayes, and Richard F. Dopler, individually and as representatives of a class to which they belong, Appellees
Physical Description: Book
Language: English
Publisher: Southern Reporter, 2d Series
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Walter L. Brown, on behalf of himself and all others similarly situated, Appellant, v. Oren A. Ellingson, William E. Cobb, the Citrus Grove Development Company, a Fla. corporation, W. J. Mann, J. J. Frekehayes, and Richard F. Dopler, individually and as representatives of a class to which they belong, Appellees (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 19
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text




Fla. 391


BROWN v. ELLINGSON
Cite as, Fla., 224 So.2d 391


Edward A. Perse, of Carey, Dwyer,
Austin, Cole & Selwood, Miami, and
Oliver L. Green, Jr., Lakeland, for ap-
pellant.

C. John Coniglio, Wildwood, for ap-
pellee.


LILES, Chief Judge.
Marilyn F. Glaum was divorced from
Cyril S. Glaum in Sumter County, Florida,
on January 12, 1968. Subsequent to the
entry of the final decree, the defendant,
Cyril S. Glaum, filed a motion to set it
aside. This motion was heard by the
trial judge, and was denied on April 2,
1968. Thereafter, defendant filed a motion
for rehearing of the order denying the
motion to set aside the final decree, and
this motion for rehearing was denied
October 14, 1968. This order is here for
review on interlocutory appeal.
Plaintiff and defendant were residents
of Dade County, Florida, but by way of
mutual agreement the divorce was started
and concluded in Sumter County, Florida.

Defendant attempted to have his decree
set aside alleging fraud. He testified that
during the time the divorce was pending
and prior to the entry of the final decree
the plaintiff and defendant were constantly
in touch with each other and that they had
cohabited as husband and wife prior to the
entry of the final decree. He stated that
they had reconciled after the filing of the
complaint for divorce and that plaintiff had
told him the suit had been dismissed.

At the hearing to set aside the final de-
cree the plaintiff denied that she had ever
cohabited with the defendant since the
filing of the complaint. She testified that
it was true that defendant had harassed
her and was constantly telephoning her
begging her to see him, and that she did on
several occasions due to these harassments
allow him to take her to dinner. She
stated that she even allowed him to live
in her house for a short period of time prior
to the entry of the final decree, but she


categorically denied that there had been
cohabitation between the parties. She also
denied cohabiting with him at anytime
within several months prior to filing for
divorce, and insisted no reconciliation had
been attained.

At the hearing on the motion to set aside
the final decree, defendant testified that
he had lived with her as husband and wife
in motels on a trip to Las Vagas prior to
the filing of suit, and in Orlando and in
their home subsequent to its filing. This
was the only testimony adduced at the
hearing and, as is readily apparent, there
was a conflict.

The trial judge being the trier of fact
had to reconcile these conflicts and he did
so in favor of the plaintiff. We can find
nowhere that he abused his discretion, and,
for that reason, we affirm.

MANN and McNULTY, JJ., concur.



S r \ _um MR


Walter L. BROWN, on behalf of himself and
all others similarly situated, Appellant,
v.
Oren A. ELLINGSON, William E. Cobb, the
Citrus Grove Development Company, a
Florida corporation, W. J. Mann, J. J.
Frekehayes, and Richard F. Dopier, Indi-
vidually and as representatives of a class
to which they belong, Appellees.
No. 68-600.
District Court of Appeal of Florida.
Second District.
June 11, 1969.
Rehearing Denied July 28, 1969.


Action against orchardists as a class by
owner of property abutting lake for him-
self and on behalf of all others similarly
situated to enjoin defendants from draw-








224 SOUTHERN REPORTER, 2d SERIES


ing water from lake without first obtaining
written consent of owners of all abutting
property. The Circuit Court for Polk
County, J. H. Willson, J., dismissed com-
plaint with leave to amend and plaintiff
took interlocutory appeal. The District
Court of Appeal, Liles, C. J., held that
statute making it unlawful for any per-
son 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 written consent of all abutting
property owners applies not only where lake
is lowered through drainage by means of
canal or ditch but also where level is low-
ered by drawing water off by pumping
for irrigation purposes, but that suit could
not be maintained as class action.
Affirmed in part, reversed in part and
remanded.


1. Waters and Water Courses t=1114
Complaint filed by owner of property
abutting lake, which defendants were al-
legedly unlawfully draining for purpose of
irrigating their fruit groves, sufficiently
alleged cause of action predicated on vio-
lation of drainage statute and also suf-
ficiently alleged cause of action for viola-
tion of common-law riparian rights. F.S.A.
298.74.

2. Waters and Water Courses S=109
Statute making it unlawful for any per-
son to drain or draw water from any lake
of greater area than two square miles so
as to lower level thereof without first ob-
taining written consent of all abutting prop-
erty owners applies not only where lake
is lowered through drainage by means of
canal or ditch but also where level is low-
ered by drawing water off by pumping for
irrigation purposes. F.S.A. 298.74.

3. Parties C-12
In absence of allegation that abutting
property owner adequately represented all
other such owners, that action challenging
right of defendants to lower level of lake


without permission of surrounding proper-
ty owners was required to be brought as
class suit, that named defendants adequately
represented purported class of defendants,
that defendants were required to be sued
as a class, that class of defendants were
so numerous as to make it impractical to
join them individually and absent showing
by requisite degree of certainty that plain-
tiffs were all too numerous to be joined in
one action, suit could not be maintained as
class action. F.S.A. 298.74.

4. Parties =II
Fact that there is apparent overlapping
of interests between plaintiffs and de-
fendants in one or more factors necessary
to maintain class action is not fatal where
it is shown by complaint or surrounding cir-
cumstances that those defendants violating
plaintiff's rights are excepted from class
plaintiff seeks to represent.

5. Evidence =12
For purpose of determining whether
owners of property abutting lake sought to
be drained by defendants in violation of
statute were too numerous to all be joined
in one suit and thus would entitle one
of their number to maintain suit as class
action, court would not take judicial notice
of number of abutting property owners.
F.S.A. 298.74.



G. Robert Schultz, St. Petersburg, for
appellant.
Joe R. Young, Jr., and Clinton A. Curtis,
Lake Wales, and Stephen H. Grimes, Bar-
tow, for appellees.

LILES, Chief Judge.

Walter L. Brown, appellant here and
plaintiff in the trial court, filed his com-
plaint for himself and all others similarly
situated against defendant-appellees, al-
leging that defendants were violating Sec-
tion 298.74, Florida Statutes, F.S.A., en-


~._., p-


392 Fla.











titled "Drainage of Lakes." 1 by drawing
water from Crooked Lake. a lake greater
than two square miles, without first ob-
tainin written consent of the abutting
owners. He also alleged that defendants
were thereby infringing upon his common
law rights as a riparian owner.

Defendants filed a motion to dismiss on
the grounds that the complaint failed to
state a cause of action, and that it was
improperly framed as a class action. The
trial judge granted the motion to dismiss
with leave to amend. However, plaintiff
chose to take this interlocutory appeal rath-
er than file an amended complaint.

In dismissing the complaint, the trial
court held that 298.74 did not apply to
the present situation because it only con-
trols when such a lake is lowered by drain-
age by means of a canal or ditch and not"
by drawing the water off by pumping as
here. It is alleged the lake was being
drained below its normal water level as a
result of defendants' grove irrigation ac-
tivities.

It is clear from reading the statute that
it requires one who wishes to drain or draw
water from any lake of greater area than
two square miles so as to lower the level
thereof must first obtain written consent
of all owners of proertv ahuttinr on or
bounded by saidlake. Whether the de-
fendants have in fact lowered the level of
the lake is a question to be decided by the
evidence adduced. The complaint alleges
that they have, and that they have done
so by drawing water from the lake to ir-
rigate their groves. While irrigation of
groves from riparian waters is normally a
proper activity, it is prohibited by statute
when the level of the lake is lowered there-
by unless permission from property owners
abutting the lake is first obtained.


1. It is unlawful for any person to drain
or draw water from any lake of greater
area than two square miles so as to lower
the level thereof without first obtain-
ing the written consent of all owners
of property abutting on or bounded by
224 So.2d-25Va


Fla 393


The trial judge cited in his order of dis-
missal the cases of Tilden v. Smith, 1927,
94 Fla. 502, 113 So. 708 and Lungren v.
Strawn, 1942, 151 Fla. 106, 9 So.2d 195.
The Tilden case had to do with lowering
the lake to its normal level by draining off
excess water into the underground by means
of a well, and the court there held that this
was a drainage project but that the statute
did not prohibit the lowering of an abnor-
mally high level in an effort to return the
lake to its natural level by such means. The
Lungren case involved a similar situation
to the instant case. But there it was prov-
en that the lake in question was less than
two square miles and that this statute
therefore did not apply. In neither case
is there a suggestion that this statute only
applies when the lowering is solely accom-
plished by "drainage" as opposed to "pump-
ing" or any other method whereby water
can be drawn from a lake.

[1,2] We therefore believe that plain-
tiff's complaint states a cause of action
pursuant to 298.74, Fla.Stat., F.S.A., and
that he should be given the opportunity
of proving whether the complaint is true
or not. That is, plaintiff must show that
the level of Crooked Lake has been lowered
below its normal level as a direct result
of defendants' pumping operations.

We are also of the opinion that plain-
tiff's complaint also stated a cause of ac-
tion in stating that his common-law riparian
rights are being violated. He alleges that
defendants have unreasonably caused the
normal water level of Crooked Lake to be
lowered so that the shoreline has receded
markedly and large areas of the lake bot-
tom are now exposed, all of which has de-
prived plaintiff of the reasonable use of
the lake for pleasure and recreational pur-
poses. While the problems of proof in
this matter may indeed be difficult, the

said lake; provided, however, this sec-
tion shall not apply to any lake included
wholly within the Everglades drainage
district. Courts of equity shall have ju-
risdiction to enjoin any person from vio-
lating the provisions of this section.


BROWN v. ELIJNGSON
Cite as, Fla., 224 So.2d 391









224 SOUTHERN REPORTER, 2d SERIES


dismissal of the complaint must be reversed
for further proceedings on this issue. See
Taylor v. Tampa Coal Co., Fla., 1950, 46
So.2d 392; Lake Gibson Land Co. v. Lester,
Fla.App., 1958, 102 So2d 833; Duval v.
Thomas, Fla.App., 1958, 107 So2d 148;
Florio v. State ex rel. Epperson, Fla.App.,
1960, 119 So2d 305,80 A.L.R2d 1117.

[3] The final point on appeal concerns
the framing of this suit as a class action.
The trial judge properly dismissed this suit
without prejudice in holding that the com-
plaint was not properly framed as a class
action.

Plaintiff has brought suit purporting to
represent himself and "all others similarly
situated," and he sues the named defend-
ants "individually and as representatives of
a class to which they belong." This court
has recently construed the standards to be
applied in determining whether an action
has properly been framed as a class action.
In Port Royal, Inc. v. Conboy, Fla.App.,
1963, 154 So2d 734, we said that:

"It is fundamental that an action is not
a class suit merely because the plain-
tiff designates it as such in the com-
plaint and uses the language of the rule.
Whether it is or is not a class suit
depends upon the circumstances sur-
rounding the case. However, the com-
plaint should allege facts showing the
necessity for bringing the action as a
class suit and the plaintiff's right to
represent the class. The plaintiff should
allege that he brings the suit on behalf
of himself and others similarly situated.
The complaint should allege the existence
of a class, described with some degree of
certainty, and that the members of the
class are so numerous as to make it im-
practicable to bring them all before the
court. It should be made clear that the
plaintiff adequately represents the class,
and whether a party adequately repre-
sents the persons on whose behalf he
sues depends on the facts of the par-
ticular case. Generally, the interest of
the plaintiff must be co-extensive with


the interest of the other members of the
class. A class suit is maintainable where
the subject of the action presents a ques-
tion of common or general interest, and
where all members of the class have a
similar interest in obtaining the relief
sought. The common or general interest
must be in the object of the action, in
the result sought to be accomplished in
the proceedings, or in the question in-
volved in the action. There must be a
common right of recovery based on the
same essential facts." 154 So.2d at 736.

[4] In applying these standards to the
present case we must consider "circum-
stances surrounding" this case on the basis
of the facts alleged in the complaint. With
regard to the existence of a class of plain-
tiffs, it appears some of the standards have
been met. Plaintiff purports to represent
all those people similarly situated, and it
is apparent from the complaint that this
group consists of other land owners abut-
ting Crooked Lake. This group is ascer-
tainable with the requisite degree of cer-
tainty. That is, the members of this class
are identifiable since they consist of all
abutting land owners, with the exception of
those land owners who are defendants.
The fact there is an apparent overlapping
of interests in that defendants are also
abutting land owners is not fatal because, as
pointed out in Port Royal, the statement
that plaintiff only represents those land
owners "similarly situated" necessarily ex-
cepts from the class of plaintiffs those de-
fendants that are violating plaintiffs' rights.
Likewise, the interest of these plaintiffs
is co-extensive.

[5] Plaintiff's complaint, however, is
somewhat deficient as regards other plead-
ing requirements of a proper class suit.
Plaintiff has not alleged that he adequately
represents all the members of this class.
Likewise, he has not alleged facts which
demonstrate the necessity for bringing this
action as a class action suit. Finally,
though plaintiff has alleged that the class
of plaintiffs is too numerous to all be


9 1 -~.~~C---C-~3CZ"-CI*CC-CCr~-7*~--*~r I-^C-


394 Fla.








STATE v. GARCIA
Cite as, Fla., 224 So.2d 395


joined in this suit he has not pleaded and
proven this conclusion to the degree of
certainty required. As stated in City of
Lakeland v. Chase Nat. Co., 1947, 159 Fla.
783, 32 So.2d 833, at 838:
"In class suits it is important to plead
and describe the class with certainty
whether the class be plaintiffs or de-
fendants and if they are considered so
numerous as to make it impractical to
bring them before the court it too should
be plead and proved with a fair degree
of certainty. More is required than the
mere pleading the language of the stat-
ute."

In other words, this court will not take
judicial notice of the number of property
owners on Crooked Lake.

With regard to the existence of an iden-
tifiable and proper class of defendants, it
appears that the complaint suffers a great-
er deficiency than it does with regard to
the purported class of plaintiffs. As in the
case of the class of plaintiffs, the complaint
does not allege that the named defendants
adequately represent the purported class of
defendants, and it does not allege the neces-
sity of suing them as a class, nor does it
properly allege that the class is too numer-
ous so as to make it impractical to join them
in this suit individually.

In addition, the purported group of de-
fendants is not identifiable with any degree
of certainty. They are not presently as-
certainable from the complaint. It could
be said that defendants are all those people
who are drawing water from Crooked Lake
to an extent which violates plaintiff's ri-
parian rights. But it is unknown who is in
this group and, by its very definition, it
would be impossible to ascertain its mem-
bers until after the present suit is dis-
posed of. In other words, as of the filing
of the complaint, there is no way to de-
termine who may ultimately wind up being
defendants in this suit. Therefore, these
unknown and presently unidentifiable mem-
bers would have no opportunity to defend
themselves in this suit, and may not even


know that their rights in Crooked Lake are
being challenged. A given property owner
would not know whether he was a party
plaintiff or defendant in this suit if he
draws any water at all from Crooked Lake.
Finally, it has not been alleged, nor is it
apparent from the complaint, that the rights
of this group of defendants are co-exten-
sive.

This cause is therefore affirmed in part
and reversed in part, and remanded for
further proceedings consistent with this
opinion and without prejudice to appellant's
right to amend concerning his allegations
that this is a class action.


MANN and McNULTY, JJ., concur.








STATE of Florida, Plaintiff,
v.
Domingo GARCIA, Defendant.
No. 69-417.

District Court of Appeal of Florida.
Third District.
May 29, 1969.


Original proceeding presenting for
decision a question certified by a judge of
circuit court of Dade County. The Dis-
trict Court of Appeal, Charles Carroll, C.
J., held that provision of statute disallow-
ing waiver of jury trial in cases where
sentence of death may be imposed is in
conflict with and has been superseded by
rule authorizing defendant tb waive a jury
trial with the approval of court and con-
sent of the state.

Decision certified for review on cer-
tiorari by Supreme Court.


Pearson, J., dissented.


Fla. 395


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