Title: Florida Water Law 1980
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Full Text

FLORIDA


WATER LAW

1980

FRANK E. MALONEY

SHELDON J. PLAGER

RICHARD C. AUSNESS

BRAM D.E. CANTER


WATER LAW
PROGRAM
CENTER FOR
GOVERNMENTAL
RESPONSIBILITY
HOLLAND LAW CENTER
UNIVERSITY OF FLORIDA


WATER RESOURCES
RESEARCH CENTER
UNIVERSITY OF FLORIDA
PUBLICATION NO.50


K; ---



















FLORIDA WATER LAW


Frank E. Maloney
Dean Emeritus and Professor of Law
University of Florida, Holland Law Center
(Deceased)


Sheldon J. Plager
Dean and Professor of Law
University of Illinois


Richard C. Ausness
Professor of Law
University of Kentucky


Bram D. E. Canter
Director, Water Law Program
Center for Governmental Responsibility
University of Florida, Holland Law Center


Water. Law Program
Center for Governmental Responsibility
Holland Law Center
University of Florida
Gainesville, Florida 32611
(904) 392-2237


Water Resources Research Center
University of Florida
OWRT Project No. B-030-FLA
Matching Grant Agreement No.
14-34-0001-7113
Publication No. 50


1980









IN MEMORIUM


On April 23, 1980, Dean Frank Edward Maloney passed
away at his home in Gainesville, Florida. The news of
his sudden death caused a somber quiet to fall upon the
University of Florida Law School, where classes were
canceled in tribute to a beloved figure. The Florida
Legislature immediately passed a concurrent resolution
expressing its deep regret at the loss of one of the
State's distinguished citizens.

Dean Maloney's achievements are too numerous to list
in detail. He was a recognized authority on water law
and environmental law for almost thirty years. His work
in these fields included major authorship of A Model Water
Code, on which the Florida Water Resources Act of 1972 was
largely based, and scores of law review articles and
technical reports.

Dean Maloney became Dean of the University of Florida
Law School in 1958, and served in that capacity with dis-
tinction until stepping down in 1970 to return to full-time
teaching.

He is remembered for his considerable competence and
quiet strength, his quick humor and his lion's share of
generosity. Dean Maloney had a host of friends in the
student body, faculty, alumni, Gainesville community,
State and Nation. His absence will be felt for a long time.

Numerous projects undertaken by Dean Maloney were
sorely affected by his death. The preparation of this
manuscript, however, was close to completion. The text
before you is substantially as he last reviewed it. He
had worked toward its publication for over two years and
regarded this work as one of his most important endeavors.
In memory of a respected colleague and close friend, the
authors dedicate this book to Dean Frank E. Maloney.


L


















ACKNOWLEDGEMENTS


The authors would like to acknowledge
the substantial assistance of Stan Niego, Lynn
Capehart, Richard Hamann, Peter Baker, Clinton
A. Thomas and Lindy Phillips in the research
and writing of this book.

The publication of this report was made
possible by a loan from the Law Center Associa-
tion.

























The preparation of this report was supported
in part by funds provided by the United States
Department of the Interior, Office of Water Research
and Technology as authorized under the Water Resources
Research Act of 1964 as amended.









TABLE OF CONTENTS


Page
INTRODUCTION 1

CHAPTER I COMMON LAW WATER RIGHTS 5

A. Water Law and the Hydrologic Cycle 5

B. Contained Surface Water 6

1. The Prior Appropriation System 7

2. The Riparian System 9

a. Consumptive Use Rules 10

i. The Natural Flow Doctrine 10

ii. The Reasonable Use Rule 12

b. Place-of-Use Restriction 17

i. Definitions of Riparian Land 17

ii. The Watershed Limitation 19

iii. Effect of Nonriparian Uses 20

iv. Transfer of Water Rights 21

v. Use by Municipalities 22

c. Prescriptive Rights 22

d. Riparian Rights in Florida 24

C. Ground Water 27

1. Hydrology 27

2. Geology The Aquifers in Florida 30

3. Ground Water Problems 31

a. Interference Between Wells 32

b. Overdraft of the Water-Bearing Bed or Aquifer 33

c. Contamination 34

d. Salt-Water Intrusion 35

ii

i_________________








4. Legal Classification of Ground Water

a. Underground Streams and Percolating
Waters Definitions

b. Presumption That Ground Water Is Perco-
lating

c. Evidence Allowable to Prove an Under-
ground Stream

d. Significance of the Classification

5. Underground Streams

6. Percolating Waters

a. The Absolute Ownership Doctrine

b. The American Rule

c. The Correlative Rights Doctrine

d. The Restatement of Torts Approach

7. Subsidence

D. An Evaluation of Common Law Water Rights


CHAPTER II STATE, REGIONAL AND LOCAL WATER RESOURCE
AGENCIES

A. Introduction

B. The Florida Environmental Reorganization Act
of 1975

C. Department of Environmental Regulation

1. Division of Environmental Permitting

2. Division of Environmental Programs

3. Environmental Regulation Commission

D. Department of Natural Resources

1. Division of Administrative Services

2. Division of Marine Resources


iii


Page

38


39

40

40

42

42

44

45

48

49

52

54

57


99

99


101

106

107

112

116

120

120

121






Page

3. Division of Recreation and Parks 125

4. Division of Resource Management 126

5. Division of Law Enforcement 127

6. Division of State Lands 127

E. Board of Trustees of the Internal Improvement
Trust Fund 130

F. Game and Fresh Water Fish Commission 134

G. Executive Office of the Governor 139

H. Water Management Destricts 141

I. Local Government Regulation 148

J. Single Purpose Districts 157

1. Drainage Districts 157

2. Soil and Water Conservation Districts 164

3. Beach and Shore Preservation Districts 166


CHAPTER III STATE REGULATION OF CONSUMPTIVES USES 191

A. Water Use Permit Systems in the Eastern United
States 191

1. Exempted Uses 192

2. Water Shortages 192

3. Comprehensive Planning 193

4. Protection of Instream Uses 193

5. Reallocation and Transfers of Water Rights 194

6. State-by-State Description 196

a. Model Water Use Act 196

b. Iowa 197

c. Georgia 198








d. Kentucky

e. Maryland

f. Minnesota

g. Mississippi

h. Wisconsin

i. Other States

B. The Florida Water Resources Act of 1972

1. Introduction

a. Historical Background

b. Administrative Framework

i. The Department of Environmental
Regulation

ii. Water Management Districts

2. The State Water Plan

a. The Statutory Mandate

b. The History of Implementation

c. The Failure of State Water Use Planning

d. The Future of State Water Use Planning

3. Water Use Permits

a. Introduction

b. The Reasonable-Beneficial Use Standard

i. The Background of the Reasonable
Beneficial Use Standard

ii. Summary of Reasonable Use, Beneficial
Use, and Reasonable Beneficial Use
c. Recognition of Environmental Considerations

d. Implementation by the Water Management
Districts


Page

199

200

200

201

201

202

205

205

205

207


208

209

212

212

215

217

218

222

222

224

227

230

232

234








i. Fully Implemented Consumptive Use
Permit Systems

ii. Partially Implemented Consumptive
Use Permit Systems

e. The Water Shortage Plan

i. The Florida Water Resources Act

ii. Water Shortage Planning at the
District Leval

iii. Review of Water Shortage Plans

iv. Conclusion

1. Permits for the Management and Storage of
Surface Water

a. South Florida Water Management District

b. Southwest Florida Water Management
District

c. St. Johns River Water Management District

C. The Vested Rights Problem

1. The Taking Issue

2. The Taking Issue in Florida

3. Cases from the Western States

4. Vested Rights and the Florida Water Resources
Act


CHAPTER IV THE LAW AND ADMINISTRATION OF
POLLUTION CONTROL IN FLORIDA

A. Common Law Development

1. The Reasonable Use Rule

2. Remedies

a. Injunction

b. Damages



vi


235


240

241

244


250

257

258

260

263


267

268

268

269

271

274


279



330

330

330

331

335

338







Page
c. Parties Plaintiff 342

d. Parties Defendant 342

3. Defenses 343

a. Statute of Limitations 344

b. Prescription 344

c. Agreement 346

d. Laches 346

e. Primary Jurisdiction; Failure to Exhaust
Administrative Remedies 346

f. Constitutional or Legislative Authoriza-
tion of Pollution 349

4. The Inadequacies of the Common Law Remedies 351

B. Federal Regulation of Water Quality 352

1. Introduction 352

2. Development of the Federal Law of Pollution
Control 353

3. The 1972 Amendments to the Federal Water
Pollution Control Act 356

a. Uniform, National Effluent Limitations 356

b. The National Pollutant Discharge
Elimination System 360

c. Areawide Waste Treatment Planning 361

d. Demonstration Grants and Other Assistance 364

4. Legal Challenges to the 1972 Amendments 365

5. The 1977 Amendments 368

a. Conventional, Unconventional, and Toxic
Pollutants 368

b. Variances and Extended Compliance
Schedules 371

c. Alternative Waste Treatment Processes 373

d. Control of Non-Point Source Pollutants 375


vii









e. Additional Provisions

C. State and Local Regulation of Water Quality

1. The Florida Air and Water Pollution Control
Act

a. Powers and Duties of the Department;
Jurisdiction

b. Implementation of DER Permitting
Authority

c. Domestic and Industrial Waste Treatment
Requirements

d. Variances

e. DER Enforcement Remedies

f. Hearings and Appeals

g. Local Pollution Control

h. Assistance to Local Governments

i. The Florida Industrial Siting Act

2. Water Quality Planning in Florida

3. NPDES Authority in Florida

4. Classification of Florida Waters

5. Water Quality Criteria

a. Exceptions and Exemptions From the Water
Quality Criteria

6. Zones of Mixing for Surface Waters

7. Zones of Discharge for Groundwaters

D. Oil Spill Prevention and Control

1. Introduction

2. The Federal Background

3. The Florida Pollutant Spill Prevention and
Control Act


viii


Page

376

377


377


379


380


383

385

387

389

392

395

396

401

401

401

403


408

410

412

413

413

415

417







Page
a. Coastal Protection Trust Fund 419

b. Prevention of Discharges 420

c. Handling Discharges 421

d. Local Government Control 421

e. Penalties 422

f. Constitutionality 422

E. Regulation of Solid Waste Disposal Facilities 424

1. Introduction 424

2. Federal Regulation of Solid Wastes 425

3. Regulation of Solid Wastes in Florida 428

F. Protection of Public Drinking Water Supplies 430

1. Introduction 430

2. The Federal Safe Drinking Water Act 431

3. The Florida Safe Drinking Water Act 436

a. State and Local Administration 436

b. Permitting and Operating Requirements 438

c. Variances and Exemptions 440

d. Public Notice Requirements 442

e. Emergency Powers 443

G. Regulation of Dredging and Filling Activities 443

1. Introduction 443

2. Federal Regulation of Dredging and Filling
Activities 447

a. Jurisdiction 447

b. Permitting Requirements and Applicable
Criteria 453

c. Hearings and Appeals 456









3. Regulation of Dredging and Filling Activities
in Florida 457

a. Development of Dredge and Fill Regulation 457

b. Jurisdiction to Control Dredging and
Filling Activities 462

c. Local Control Over Dredging and Filling
Activities 465

d. Permitting Requirements and Applicable
Criteria 467

e. Constitutionality 472

f. Presumption and Burden of Proof 476

H. Standing of Private Citizens to Bring Suit to
Abate Water Pollution 478

1. Standing Under the Common Law 478

2. The Florida Environmental Protection Act 481

3. Chapter 823, Public Nuisances 485

4. The Federal Water Pollution Control Act 488


CHAPTER V DIFFUSED SURFACE WATER 586

A. Distinguishing Diffused Surface Water from
Other Forms 587

B. Rules Governing Disposal of Diffused Surface
Water 589

1. The Civil Law Rule 590

2. The Common Enemy Rule 592

3. The Reasonable Use Rule 594

C. Application of the Rules 596

1. The Upper Owner 597

a. Augmenting Natural Drainage 598

b. Diversion 599







Page
c. Collection and Discharge 601

d. Raising the Level of the Land 602

e. Rendering the Surface Impervious 605

f. Drainage into a Natural Watercourse 606

2. The Lower Owner 610

a. Damming Back 610

b. Raising the Level of the Land 612

D. The Florida Position 613

E. Remedies 618

1. Trespass to Land 619

2. Negligence 620

3. Nuisance 620

4. Injunction 621

5. Damages 622

6. Defenses 623

a. Contributory Negligence 623

b. Assumption of Risk 624

c. Avoidable Consequences 625

d. Comparative Negligence 626

e. Self-Help 626

f. Statutes of Limitation 629

g. Prescription 630

h. Priority of Occupation 632

7. Inverse Condemnation 633

F. Government Programs to Deal with Surface Water
Runoff 638








Page

CHAPTER VI SUBMERGED LANDS AND WATER BOUNDARIES 674

A. Introduction 674

B. Basic Considerations 674

1. General Historical Development 674

2. Sources of Titles to Submerged Lands in
Florida 675

3. Spanish Grants Title to Water Bottoms
Under the Civil Law 677

a. The Navigability Concept Under Civil
Law 678

b. Public Water Rights Under Civil Law 679

i. Seas and Bays 679

ii. Public Rivers 679

iii. Lakes 679

c. Status of Spanish Grants Today 680

4. Sovereignty Lands State Acquisition of
Title from the Federal Government 683

C. Navigability Under Federal Law 684

1. Common Law Roots 684

2. The Development of the Concept of Naviga-
bility in America 685

3. Navigability In Fact 687

D. The Choice of Law Issue 690

E. Navigability Under Florida Law 696

1. Development of the Florida Bed Title Test 696

2. Relationship of the Federal and Florida Bed
Title Tests 701

3. Public Use vs Public Title 703

F. Fresh Water Boundaries The Ordinary High Water
Line 707


I








Page

G. Tidal Boundaries 713

1. Tides 713

2. The Mean High Water Line 718

H. Ambulatory Boundaries 726

1. Accretion 727

2. Artificial Accretion 729

a. Artificial Accretion Caused by the
Upland Owner 730

b. Artificial Accretion Caused by Third
Parties 730

3. Erosion Control by Upland Owner 733


xiii









INTRODUCTION


Many changes have taken place in Florida since the predecessor

to this book, Water Law and Administration.: The Florida Experience,

was published in 1968. Since that time the population of Florida

has increased from 5 million to almost 8 million. Many of these

newcomers have settled in water deficient areas of south Florida

or in the environmentally fragile regions of southwest Florida.

Florida's water law has also changed significantly in the past

12 years. The 1972 Florida Water Resources Act, the 1972 Florida

Land and Water Management Act and the 1974 Coastal Mapping Act

are examples of new legislation at the state level. In addition,

the National Environmental Policy Act of 1969, the Federal Water

Pollution Control Act of 1972 and the Clean Water Act of 1977

illustrate how federal legislation has affected Florida's water

resources.

This study will attempt to make a comprehensive examination

of Florida water law, including both consumptive uses of water

and land use activities that affect the aquatic environment.

The first chapter is concerned with common-law water rights.

The reasonable use rule, by which surface water is allocated in

the eastern states, is discussed in some detail. The various

doctrines which govern the allocation of percolating ground water

are also considered. Chapter I also takes a look at the problem

of land subsidence caused by ground water pumping.

Chapter II is concerned with the multitude of state and

local agencies which are responsible for the management of









Florida's water resources. This chapter begins with an analysis

of the Florida Environmental Reorganization Act of 1975. The

structure and powers of the Department of Environmental Regulation

and the Department of Natural Resources are delineated. Other

state agencies such as the Board of Trustees of the Internal

Improvement Trust Fund, the Game and Fresh Water Fish Commission,

and the Executive Office of the Governor are also discussed. At

the local level, chapter II focuses on the various water manage-

ment districts, although some attention is also given to the

role of drainage districts, soil and water conservation districts,

and beach and shore preservation districts.

Chapter III surveys the water allocation systems of the

eastern United States and describes the statutory permit systems

that have been established in many areas of the country. The

primary emphasis, however, is on the Florida Water Resources Act

of 1972. Some of the act's highlights, which are discussed in

this chapter, are the State Water Plan, the consumptive use per-

mit system, the reasonable-beneficial use standard, water shortage

planning, and the regulatory framework for dams and impoundments.

Finally, this chapter will consider the constitutional problems

that may arise when existing water uses are subjected to regu-

lation under the 1972 act.

In chapter IV the nature of common-law remedies against

water pollution is reviewed. The bulk of this chapter, however,

deals with the Federal Water Pollution Control Act of 1972 and

the 1977 amendments to this legislation. The role of state and

local government in the regulation of water quality is also








described. In addition, chapter IV considers a number of specific

water quality problems. One of these is oil spill prevention and

control; chapter IV gives considerable attention to the Florida

Pollutant Spill Prevention and Control Act. Another area is the

regulation of solid waste disposal facilities. Protection of

public drinking water supplies is also covered in this chapter;

both the Federal Safe Drinking Water Act and the Florida Safe

Drinking Water Act are analyzed. Finally, regulation of dredge

and fill activities at both the state are federal level is

explored.

Diffused surface water is the subject of the next chapter.

Each of the legal doctrines which govern the disposal of diffused

surface water, the civil law rule, the common enemy rule, and the

reasonable use rule, is examined. Chapter V also delineates the

various remedies and defenses to actions which cause flooding

from diffused surface water. This section concludes with a dis-

cussion of inverse condemnation and a brief survey of government

programs which are intended to relieve surface water runoff

problems.

The final chapter is concerned with submerged lands and

water boundaries. A central concept is navigability and chapter

VI analyzes both the federal and the Florida law of navigability

and points out where each is applicable. The chapter also dis-

cusses the ordinary high water mark and its function in the de-

termination of fresh water boundaries. Likewise, the concept of

the mean high water line and its use in the demarcation of

boundaries in tideland areas is examined. Finally, chapter VI


i








considers the problem of ambulatory boundaries and the doctrines

of accretion, reliction and erosion.





CHAPTER I

COMMON LAW WATER RIGHTS

A. Water Law and the Hydrologic Cycle.


Scientists have long recognized that water moves in

what is known as the hydrologic cycle, the recurring pro-

cess through which water passes from atmospheric water

vapor into liquid and solid form as precipitation, thence

along or into the ground, finally returning to atmo-
1
spheric water vapor by evaporation and transpiration.

The law, however, has classified water as if the differ-

ent physical stages of water were separate and distinct,

rather than interrelated parts of the hydrologic cycle.

As stated in an early Florida case, this classification

has generally included the following four classes of
2
water:

(1) [S]urface streams which flow in a
permanent, distinct, and well-defined
channel from the lands of one owner to
those of another; (2) surface waters,
however originating, which, without
any distinct or well-defined channel,
by attraction, gravitation, or other-
wise, are shed and pass from the
lands of one proprietor to those of
another; (3) subterranean streams
which flow in a permanent, distinct,
and well-defined channel from the
lands of one to those of another pro-
prietor; (4) subsurface waters which,
without any permanent, distinct, or
definite channel, percolate in veins
or filter from the lands of one owner
to those of another.

These are the familiar classifications of what are com-

monly known as watercourses, diffused surface waters, dis-

tinct underground streams, and percolating ground water.

The hydrologist is quick to point out that these classes


k









are not distinct, but closely interrelated:


The legal classes of water, as listed
above, are now known not to be separate
and distinct, but to be interrelated
and interdependent. The minimum flow
of water in watercourses comes chiefly
from ground water, whether from "de-
fined underground streams" or "per-
colating" water. The maximum flow of
water in watercourses also comes in
part from ground water, but is likely
to include a large proportion of water
that was temporarily "diffused surface
water." "Diffused surface waters" may
include water from precipitation which
has not completed the process of in-
filtrating into the ground or which
cannot enter the ground because of
impermeability of the surface layer,
or because the ground is temporarily
full; overland flows which may either
seep into the ground elsewhere or
enter a watercourse or lake or pond;
the discharge from ground water res-
ervoirs at springs or seeps; water in
sloughs or escaped floodwaters in
"watercourses" that have been too nar-
rowly limited in their definition; and
marshes and bogs formed by ground water
where the water table rises to the
surface.

Nevertheless, we will observe the traditional classi-

fications in the following discussion of common-law

water rights while at the same time remaining aware

that these legal categories often obscure the under-

lying hydrologic relationships.

B. Contained Surface Water.

Within a country as large and diverse as the United

States, with tremendous variations in the quantities of

available fresh water, it is not surprising that differ-

ent systems of regulating water use should have developed.

While the United States, viewed in its entirety, has a









bountiful supply of water, only the eastern and particu-

larly the southeastern United States, including Florida,

is normally blessed with an ample annual rainfall. The

western United States, especially that part of the coun-

try west of the Mississippi River, is much more arid,

with the exception of a relatively narrow band along

the northwest coast, including the western edges of the

states of Washington and Oregon, and parts of Northern

California.

As the United States developed, the more humid

East found variations of what became known as the

"riparian" system of water law suitable to its earlier

needs, whereas the arid West adopted the system of

water law known as prior appropriation.

1. The Prior Appropriation System.

The prior appropriation system is the primary mech-

anism for water allocation in the western United States.4

Priority and beneficial use are its fundamental charac-

teristics. The prior appropriation doctrine provides

that the appropriator is entitled to satisfy his water

needs before a subsequent appropriator may divert water

from the stream.5 The subsequent or junior appropriator

also possesses a legally protected water right, but it
6
is subordinate to that of the senior appropriator.

Under prior appropriation, water rights are derived

from beneficial use of the water rather than from land

ownership.7 Not only must the use be a beneficial one,









but the methods of diverting the water, conveying it to

the place of use, and applying it to the land or machin-

ery for which it is appropriated must also be efficient
8
under the circumstances. Appropriations are made for
9
a definite quantity of water, usually expressed in

cubic feet per second for direct diversion or in acre-
10
feet for reservoir storage. Diversions are often
11
limited to specific times of the day or week. More-

over, administrative procedures for appropriating water

invariably require the applicant to designate the pro-

posed place of use for the water he desires to
12
appropriate.2 The place of use may be on nonripar-

ian land.13

In the West, water rights are perpetual in dura-

tion, although they may be lost or abandoned through
14
nonuse. However, several states have enacted statutes

giving certain uses preferred status for purposes of al-

locating water during times of shortage or for choosing
15
between simultaneous applications. In addition, some
16
states give these preferred uses condemnation powers. 1

Nowadays, appropriative rights usually operate within a

comprehensive statutory and administrative framework.

In most jurisdictions permits are issued by a state ad-

ministrative agency pursuant to some form of adjudica-

tory process. The agency often has the power to deny or

modify permit applications in order to protect senior ap-

propriators or the public interest.17


8









Despite some problems with inefficient use, over-

appropriation, and lack of transferability, the prior

appropriation system has worked relatively well in the

West. This has lead some experts to urge its adoption

in the East. Since World War II at least nine eastern
18 19 20
states including Arkansas,8 Georgia, Florida,
21 22 23
Michigan, Mississippi, North Carolina, South
24 25
Carolina, Wisconsin, and, most recently, West
26
Virginia,6 have considered the desirability of switch-

ing to an appropriative type system creating vested

water rights, but only Mississippi has adopted such an
27 28
approach; the others have all rejected it.28 Never-

theless, many eastern states, including Florida, have

modified the riparian system by adopting statutory

water allocation schemes which contain a number of prior
29
appropriation features.2

2. The Riparian System.

The riparian system of water law which developed in

the states east of the Mississippi River, paralleled the
30
development of the common law of England. It is a

system of water rights based on ownership of land abutt-

ing on surface watercourses, including both lakes and

streams. The owners of such land are referred to as
31
riparian owners. It continues to apply in those areas

of Florida which have not implemented the consumptive

use permit system authorized by the Florida Water Re-
32
sources Act of 1972.









a. Consumptive Use Rules.

There are two doctrines that govern consumptive

rights to water under the riparian system, the natural

flow doctrine and the reasonable use rule.

i. The Natural Flow Doctrine.

Under the natural flow doctrine, each riparian pro-

prietor on a watercourse is entitled to have the stream

flow through his land in its natural condition, not per-

ceptibly retarded, diminished or polluted by others.33

This doctrine is based on the principle that the law

should follow nature and that each proprietor on a

stream should be entitled to have the stream continue to
34
flow in its natural state through his land.

Consumptive uses are not entirely prohibited by the

rule, but a distinction is made between "natural" and
35
"artificial" wants or uses. Natural uses are those

necessary to sustain life and include water for bathing,
36
drinking, household purposes, and watering animals.

The natural flow doctrine allows a riparian proprietor

to use as much water as he needs for his domestic or

natural uses even if this depletes the entire stream-
37
flow.

Artificial uses are those which increase man's com-

fort and prosperity and include irrigation, manufactur-

ing, power generation, mining operations, and large-
38
scale stock watering.38 Riparian landowners may divert

water for artificial uses as long as there is no









material interference with the natural flow of the water-

course, but a nondomestic use which noticeably affects

the natural condition of the stream creates a cause of

action for a downstream owner even though he is not
39
using the stream and suffers no actual damage. The

plaintiff is deemed to be injured by the change in the

natural flow or condition of the stream and may obtain
40
nominal damages or injunctive relief.0 In fact, under

the natural flow doctrine, the downstream owner is may

be forced to institute an action in order to protect his

rights against the acquisition of a prescriptive right

by an upper riparian user even though the diversion is
41
harmless under the existing circumstances.

In the early days of the Industrial Revolution,

when many mills and factories were powered by water,

the natural flow doctrine ensured that the water passed
42
down from one mill dam to the next. Under modern con-

ditions, however, the natural flow doctrine has little

utility. It prohibits many beneficial, nonharmful uses

simply because they materially diminish the natural

flow of the water. The natural flow doctrine also per-

mits a riparian proprietor to play "dog in the manager;"

that is, he does not use the water himself but deprives

the upstream owners of its use as well. Fortunately,

only four or five states still adhere to the natural

flow doctrine.3










ii. The Reasonable Use Rule.

The reasonable use rule is now the majority posi-

tion, at least in the eastern United States. The reason-

able use rule and the natural flow doctrine reflect

widely divergent attitudes about man's relation to a
44
watercourse: The natural flow doctrine emphasizes the

status quo of nature, whereas the reasonable use rule

seeks to promote the fullest beneficial use of streams
45
by adjacent riparian owners. Under the reasonable use

rule, each riparian proprietor may use the water for any

beneficial purpose, provided that the intended use is

reasonable with respect to the needs of other proprietors

on the stream and does not unreasonably interfere with

their legitimate water uses. Of course, the mere fact

of benefit to the user does not establish the reason-
46
ableness of the use. Moreover, neither the priority

of use nor the extent of riparian frontage or riparian

land are generally considered in determining reason-
47
ableness. Although riparian rights are regarded as

equal or correlative, each riparian user is not neces-

sarily entitled to a proportionate share of the avail-
48
able water. Indeed, where the water supply cannot

satisfy the needs of all riparian users, some uses,

otherwise beneficial, may be deemed unreasonable under
49
the circumstances and prohibited.4

The determination of the reasonableness of a use

is a question of fact and must be resolved on a case-by-


12









case basis. The Restatement (Second) of Torts has

identified nine factors which courts have taken into

consideration in determining whether a use is a
50
"reasonable use." These are: (1) the purpose of

the respective uses; (2) the suitability of the uses

to the water course or lake; (3) the economic value

of the uses; (4) the social value of the uses; (5) the

extent and amount of the harm caused; (6) the prac-

ticality of avoiding the harm caused; (7) the prac-

ticality of adjusting the quantity of the water used

by each proprietor; (8) the protection of existing

values of land, investments and enterprises; and,

(9) the burden of requiring the users causing the harm
51
to bear the loss.

Purpose

Whether a use is reasonable depends in part upon

the purpose of that use. The Restatement (Second) of

Torts notes, "A reasonable use must be one made for a

beneficial purpose that fullfills a lawful need or de-
52
sire of man."5 As in the case of the natural flow

doctrine, courts examining the purpose of consumptive

use have sometimes distinguished between natural and

artificial uses.

At common law, all uses which are not natural uses

are considered artificial uses and have no preferential

status.53 A wide variety of artificial uses, however,

are potentially "reasonable" uses.54 Use of water for









the purpose of irrigation has been considered both reason-
55
able and beneficial. Other artificial but reasonable
56
uses include use of water for fishing, swimming, rec-
57 58
reaction 5 and manufacturing.5

Suitability

Many courts have recognized the suitability of the

watercourse as a factor in determining the reasonableness

of the use. Suitability refers to the reasonableness of

a use with respect to the size and character of a water-

course. Unreasonable uses may consume more water than

the stream normally delivers or may impair recreational

and environmental values. A new use may not be compat-

ible with the preexisting pattern of uses.59

Economic Values

Whether a use is reasonable often hinges on its util-

ity and value to the user, measured in economic terms.60

Economic value may be evident in the productivity of the

use of water in irrigation or manufacturing. Economic

value may also arise from the recreational or scenic uses
61
of waterbodies.

Social Values

Social values, or the public interest, have weighed

heavily as a factor where considerations of public health

and welfare were at stake. The adverse impact on public

welfare of an otherwise reasonable private use may out-

weigh any economic benefit produced by the use. On the

other hand, a use which benefits the public as well as









the water user will have social value as well as private
62
economic value. Courts have held that the public good

is advanced by such uses as salinity control, water sup-

ply or sewage disposal.63

Extent of Harm

Interference with a use may range from slight incon-

venience to total destruction. Whether the interference

is reasonable requires an examination of the value of

the impeded use. If the harm suffered is insubstantial,

a court could find the use to be reasonable.64 Harm has

been found to be substantial and unreasonable, however,

where an upper proprietor attempts to reserve all of the
65
water for his exclusive use.

Avoiding Harm

To allow as many water uses as possible, courts

have considered whether it is practical to avoid harm

either by adjusting the manner of water use or by requir-

ing use of another water source. Efficiency and cost of

adjustment to each riparian are weighed in the balance.

A use which is unnecessarily wasteful or inefficient may

be declared unreasonable if a change in the method of

use would have avoided the harm to other riparians with-

out substantial reduction in profitableness. In contrast,

an otherwise reasonable use would be allowed to continue

where an adjustment would be prohibitively costly or

would render the use impractical.66









Adjusting the Quantity

The practicality of adjusting the quantity of water

used by each riparian has been another factor weighed by

the courts. Where a riparian is using more water than

is needed for his purpose, the entire use need not be

deemed unreasonable. Rather, a reduced, reasonable quan-

tity may be protected.67 Similarly, courts have sometimes

divided the available water among riparians according to

their respective need.68 The question of adjusting the

quantity between users may become critical in times of
69
water shortage.

Protection of Existing Values

According to traditional riparian doctrine, priority

of use gives no superior rights in a stream.70 Thus, pri-
71
ority is immaterial. A few courts, however, have held

unreasonable a new use which destroys the value of pre-

existing uses and investments in land and facilities.

Protection of existing values is interrelated with con-
72
sideration of the social and economic value of a use.

Burden of Loss (Compensation)

The final factor requiring the harmful use to bear

the burden of loss is grounded in public policy. The

United States Supreme Court has said that "later uses

with superior economic resources should not be allowed

to impose costs upon smaller water users that are be-

yond their economic capacity.74 Allocation of the eco-

nomic burden requires consideration of whether


16









compensation should be paid by a new user when the deci-

sion to supplant an existing use is made. Again, the

social and economic value factors are interwoven with

the compensation factor. A new use has usually been

viewed as unreasonable where it caused substantial, un-

avoidable harm to an existing, socially and economi-

cally valuable use and where the new user was able but

unwilling to compensate for the harm.75

b. Place-of-Use Restrictions

Under both the natural flow and reasonable use

theories, water rights are based on ownership of ripar-

ian land, a principle which prevents nonriparian land-

owners from using watercourses and which has led to

other use restrictions as well.

(i). Definitions of Riparian Land

Since surface water may be used only on "riparian"

land, 76 the courts have developed several tests to

determine whether a particular tract is riparian or not.

Perhaps the most restrictive is the "source of title"

test, under which riparian rights are limited to the

smallest parcel held under one title in a chain of
77
title leading to the present owner. The size of a

riparian tract cannot be increased by the purchase of

contiguous nonriparian land,78 and if the back portion

of a riparian tract is sold it loses its riparian
79
character.79 Moreover, the subsequent reuniting of a

severed tract with the abutting tract will not








80
re-establish its riparian status. Thus, a riparian

tract can be decreased but never increased in those ju-
81
risdictions which follow the source of title rule.
This rule, which originated in California, tends to re-

strict available surface water supplies to a small group

of riparian owners and has been largely confined to the
82
western states.82 The rule supports the western policy

of limiting riparian rights as much as possible in

order to provide more water for appropriators, but it

seems inappropriate for eastern states where more water

is available.

The more inclusive "unity of title" rule provides

that any tracts contiguous to the abutting tract are

riparian, if held in common ownership, regardless of
83
when they were acquired.83 This approach permits an in-

crease in the size of a riparian parcel by the purchase

of contiguous land even though the added land had been

nonriparian ever since its transfer from governmental

to private ownership. Given the trend toward larger

farms and landholdings in this country, application of

the unity of title theory will result in a continually

expanding quantity of riparian land. This rule has sup-
84
port in both eastern and western jurisdictions.

The unity of title rule appears to be a better ap-

proach for an eastern jurisdiction than the source of

title test. Often a riparian owner can use water on

land added to his riparian tract land without









unreasonably curtailing the amount of water available for

other riparian owners. However, the failure of the unity

of title rule to impose any restriction on the amount of

added land which can become riparian when acquired by

one riparian owner may adversely affect other riparian

proprietors. Accordingly, some courts have declared

that the amount of riparian land claimed under the unity
85
of title rule must be reasonable.8 Under this corol-

lary, the distance of the land from the watercourse is

taken into account in deciding the reasonableness of
86
the particular water use.86 Arguably, this affords

other riparians some protection against monopolization

of water by one riparian owner.

(ii). The Watershed Limitation

The concept of riparian land is further restricted

in some states by the watershed limitation, which pro-

vides that any part of a tract of land which lies out-

side the watershed of a body of water is not riparian to

it even though the tract itself borders on a natural

watercourse and is otherwise riparian.87 This water-
88
shed limitation is followed in five western states and
89
a few eastern states.

The watershed limitation is based on the assumption

that land beyond the watershed is outside the boundaries
90
established by nature for riparian ownership and that

water used on land within the watershed will eventually
91
return to the parent body of water. If water is











withdrawn from one watershed and drained into another,

downstream owners along the first watercourse would

be damaged by dimunition of the stream's flow, while

those along the second watercourse might be injured
92
by the effects of an excessive stream flow. This

allows a riparian owner to use water on his land to

the maximum extent while at the same time protecting

downstream owners, and protects riparians who are not

currently exercising their riparian rights by insuring

that water will be available if needed in the future.

Nevertheless, many commentators favor relaxation
93
or abolition of the watershed rule. In the East,

this restriction often unduly limits water use and
94
encourages waste of the resource. At present, few

eastern states have expressly adopted the watershed
95 96
rule, two have rejected it, and the rest have not

yet taken a position.


(iii). Effect of Nonriparian Uses

A nonriparian use is one in which water is diverted

onto nonriparian land. Land which lies outside of a

stream's watershed is also deemed nonriparian in those

states which adhere to the watershed rule. Thus, both

diversions by a nonriparian landowners and use of water











by a riparian owners on nonriparian land are considered

a nonriparian uses.

Nonriparian uses, however, are not always prohibited.

According to one view, such uses are wrongful per se and

riparian owners may obtain appropriate judicial relief
101
even though they have suffered no actual damage. In

states which follow the reasonable use rule, however, a

plaintiff must usually prove actual damage before he can
102
enjoin a nonriparian use. A few states permit non-

riparian uses even though they cause harm to downstream
103
riparian owners; nonriparian use is simply one factor

that is considered in determining whether the use is

reasonable in accordance with the requirements of the
104
reasonable use rule.


(iv). Transfer of Water Rights

In most states riparian rights are not transferable
105
apart from the riparian land to which they are incident,

but a few jurisdictions have allowed severance of such
106
rights. In such cases the right of the nonriparian
107
grantee is derivative, and the riparian owner cannot
108
convey a greater right than he has. Moreover, while

the right of the nonriparian grantee is effective
109
against his riparian grantor, it is usually inferior
110
to the rights of other riparians.




21








(v). Use By Municipalities

In theory, a municipality cannot divert water for

purposes of public water supply even where it owns riparian
111
property. Actually, courts often refuse to prevent

municipal water utilities drawing from watercourses and

deny relief on the basis of failure to show damages

estoppel or latches, or the existence of prescriptive
112
right on behalf of the municipality. A few states

have expressly recognized riparian rights for munici-

palities.13 Of course, municipalities normally have

the power to acquire water rights by eminent domain, and

once water rights are acquired, the municipality may sell

water to nonriparians and is not bound by any of the re-
114
strictions of the riparian doctrine.

(c). Prescriptive Rights

Most riparian jurisdictions allow both riparian and

nonriparian owners to acquire prescriptive rights to par-
115
ticular water uses. A prescriptive right constitutes
116
a servitude against the ownership adversely affected,

and thus amounts to an uncompensated transfer of rights
117
from the adversely affected riparians to the adverse user.

Prescription, like adverse possession, rests on the theory

that aggrieved parties should seek judicial relief within
118
a reasonable time or be forever barred from a remedy.

In order to ripen into a prescriptive right, the use

must be adverse, notorious, continuous and uninterrupted,

and be made under a claim of right or title. To establish









a right by prescription the use must be maintained in a

manner hostile to the right of the riparian proprietor
119
against whom it is claimed. An act is hostile when

it is inconsistent with the true owner's rights of
120
ownership. Thus, a licensed or permissive use can

never give rise to a prescriptive right because such
121
uses are not hostile to the titleholder.

The use must be visible, open and notorious so that

the riparian owner either knows, or should know, that
122
his rights have been invaded. It must also be con-

tinuous and uninterrupted for the entire prescriptive
123
period.123 Since some water uses, like irrigation, may

be sporadic rather than continuous, this requirement is

probably satisfied if the claimant uses the water as his

necessities require. Of course, the initation of a suit

puts an end to the adverse character of the use as does

any other substantial interruption during the prescrip-
124
tive period. Likewise, the adverse use is interrupted

if at any time during the limitation period the adverse

claimant concedes or acknowledges title in the true
125
owner. Finally, use of water by one claiming a pre-

scriptive right must be under a claim of right so as to

necessarily imply an ouster of the owner's exclusive
126
right of control.

Because of the transient nature of water, prescrip-

tive water rights are difficult to acquire. In those

states which follow the natural flow doctrine, there must









be an actionable invasion of the right to the stream's
127
natural flow, while reasonable use jurisdictions re-

quire an actionable wrong involving actual damages to
128
the servient owner.

The scope of a prescriptive right, once acquired,

is measured by the use originally made and actually en-
129
joyed during the prescriptive period. Once a pre-

scriptive right has been perfected, the water use may
130
be changed at any time, as long as the new use does
131
not increase the burden imposed on the servient estate.

Finally, prescriptive rights, once acquired, may be lost

by abandonment, although mere nonuse is only evidence of
132
an intent to abandon and non conclusive.

(d). Riparian Rights in Florida

The Florida Supreme Court first recognized the doc-
133
trine of riparian rights in Tampa Waterworks Co. v. Cline,

decided in 1896. The plaintiff in the Cline case was a

waterworks company which supplied water to the City of

Tampa from a spring-fed stream.

When the defendant, a nearby landowner, excavated

a hole on his land and exposed the spring, the plaintiff

fearing that it would be polluted by surface runoff,

brought suit to prevent further excavation. The Court

observed that same rules applied to both contained sur-

face waters and underground streams and declared that

the law of riparian rights was applicable in Florida as

part of the English common law. The Court seems to have









rejected the natural flow doctrine in favor of the reason-

able use rule since it sustained the trial court's denial

of injunctive relief when the plaintiff was unable to

prove damages.

The riparian reasonable use rule was also applied
134
more recently in Taylor v. Tampa Coal Co. which in-

volved a 26-acre fresh-water lake in central Florida.

The plaintiff in Taylor sued to prevent the defendant

from withdrawing water from the lake to irrigate his

citrus grove. The trial court found that the lake level

was falling about 1/2 inch per day because of drought

conditions and another 1/2 inch per day as the result of

the defendant's pumping. At the time of the trial the

lake level was 49 inches below normal and, according to

the plaintiff, this condition interfered with use of the

lake for recreational purposes. The defendant argued

that the plaintiff's inconvenience was trivial in com-

parison with the possible loss to his citrus grove if he

were prevented from irrigating. Nevertheless, the trial

court granted an injunction.
135
On appeal, the Florida Supreme Court.declared:

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 in-
volved are equal. Except as to the supply-
ing 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 ri-
parian owner has the right to use the
water in the lake for all lawful purposes,
so long as his use of water is not det-
rimental to the rights of other riparian









owners The fact that one riparian
owner may choose to use the water in the
lake for recreational purposes while
another may desire to divert it for an
artificial 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 respect to use between a
farm and a summer residence.

The Court thus affirmed the lower court's decision

to prohibit the defendant from irrigating while the lake

level was below normal.

One riparian owner also sued another in Lake Gibson
136
Land Co. v. Lester to prevent withdrawal of water from

a lake for irrigation purposes. However, the facts in

Lester were somewhat different from those of the Taylor

decision. The lake in the Lester case was larger, about

485 acres as opposed to 26 acres. Moreover, the defen-

dant in Lester has been pumping water from the lake for

more than 20 years before the lawsuit was brought. Fi-

nally, the defendant showed that a drought rather than

his pumping was the major cause of the lowering of the

lake below its normal level. Accordingly, the Florida

Supreme Court held in favor of the defendant.

With the enactment of the 1972 Water Resources Law,

the riparian system was replaced by a statutory allo-

cation scheme in most parts of Florida. However, the

riparian system continues to remain in force in those

areas of the state which have not yet implemented the
137
1972 Act's consumptive use permit provisions.









C. Ground Water

Ground water is one of Florida's most important

natural resources. It is the principal source of water

supply for domestic, municipal, industrial, and agri-
138
cultural uses. With the tremendous population expan-

sion and industrial growth in Florida today, the proper

conservation and utilization of this resource becomes

increasingly important.

1. Hydrology

Ground water is but one phase of the hydrologic

cycle and, at least in its freshwater form, is derived

from rainfall. Not all of the rainfall will become

ground water, however, since some of it will remain as

surface water or return to the atmosphere through evapo-

ration. It should be noted that technically ground

water is a subclass of a larger subsurface water classi-

fication. Subsurface water occurs in two primary zones
139
(Fig. 1).9 The water that seeps down to be available

for plants is found in the zone of aeration. The voids

in the rocks in this zone contain both water and air,

and the water is held by capillarity. The remainder of

the subsurface water percolates down to the zone of

saturation, in which the water completely fills the

voids in the rocks. Only the water that reaches this

zone is available to supply springs and wells. The sub-

surface water occurring in the zone of saturation is re-

ferred to as ground water, and it is primarily this water

with which this chapter is concerned.
27








Ground water moves both by percolation and by lami-

nar flow through small and large openings. Such move-

ment of the water, either by percolation or through the

voids and pores of the rocks and soil, is in response

to hydrostatic pressure and gravity. A bed of sediment

that is porous and permeable enough to allow the move-

ment of ground water to supply wells and springs is

known as an aquifer or water-bearing bed.

FIGURE 1
SUBSURFACE WATER ZONATION


























conditions. The water is under water-table conditions
n^











Ground water occurs under water-table or artesian
conditions. The water is under water-table conditions

when the ground water surface is free to rise and fall

with the water supply. Water that has moved through a









permeable bed and is confined under an impervious water-

tight bed, called an aquiclude, is said to be under

artesian conditions. The artesian water is under pres-

sure and will rise above the water-bearing bed if a well

is sunk through the acquiclude or confining bed.

By measuring the height in many wells throughout

the state to which the artesian water will rise in rela-

tion to sea level, a contour map of the imaginary pres-

sure surface or piezonmetric surface can be prepared
140
(Fig. 2). The peizometric surface reveals much in-

formation on the source and movement of water in the

artesian aquifer. In areas where the piezometric sur-

face is high but lies beneath the surface of the land,

wells will not flow. Discharge areas, such as the areas

where Florida's springs are found, occur where the

piezometric surface is higher than the land surface and
141
the wells will flow (Fig. 3).

FIGURE 2
PIEZOMETRIC SURFACE OF FLORIDAN AQUIFER
I .


p I E Z 0 M E TflC su 4


-I----









2. Geology-The Aquifers in Florida

The hydrology of ground water is but one aspect of

an understanding of its characteristics. The geological

formations of an area figure significantly in the availa-

bility of ground water.

Almost the entire state is underlaid with a porous

and permeable limestone that provides much of Florids's
142
ground water supplies (Fig. 4). These rock formations

are called aquifers. In Florida the aquifers are under

both water-table and artesian conditions.

The Floridan aquifer, which is under artesian con-

ditions, provides most of Florida's water supply, except

where it is absent (Santa Rosa and Escambia counties)

or where it is too salty or mineralized for most purposes

(along the east coast below St. Augustine and the pen-

insula below Lake Okeechobee). The Floridan aquifer is

the source of most of the large springs in Florida and

thousands of wells. Seventeen of these springs rank in

the first magnitude, being springs with an average daily

flow of 64.6 million gallons. The discharge from the

largest of these springs, Silver Springs, has ranged
143
from 419 to 756 million gallons a day.

The other principal aquifer in Florida is the

Biscayne aquifer of Dade and Broward counties. It is

very productive and consists of highly permeable lime-

stone and sand. It is the sole source of ground water

in the area and exists under water-table conditions.


I.






FIGURE 3

AREA OF ARTESIAN FLOW


The

and

3.


other aquifers in the state are also limited in area

exist under water-table and artesian conditions.

Ground Water Problems


The basic problems of ground water conservation and

control fall under three general headings: (a) inter-

ference between wells; (b) overdraft of the water-bear-

ing bed or aquifer; (c) contamination, which includes

pollution and salt water intrusion.144 Though separable

analytically, these problems are interrelated in terms

of actual cause and effect. In a sense, all of them

involve waste of the ground water supplies because the

supplies are not utilized effectively.









(a) Interference Between Wells

When a well is pumped or allowed to flow, the water

level in the area around the well is lowered as a result

of the withdrawal of the water. The water-table surface

forms a depression in the shape of an inverted cone.

The shape of the cone is governed by the size of the

openings in the rocks forming the aquifer. If the open-

ings are large, the cone is flat; if they are small, the

cone is steep because of the restricted flow. The cone

of depression may extend a few feet from the well to a

few miles. The amount of drawdown in the well depends

on the rate of flow or pumping and the rate or release

of the water from storage in the waterbearing bed.

FIGURE 4
I


DISTRIBUTION OF FRESH-WATER AQUIFERS











Interference occurs between wells when the cones of
145
depression overlap (Fig. 5). The interference may be

caused by improper spacing in the well field or by

excessive withdrawals, or what appears to be an inter-

ference may actually be caused by the lowering of the

water table or pressure surface as a result of in-

adequate recharge of the aquifer because of drought

conditions. When interference occurs, it can usually

be remedied by deepening the well or lowering the pump.

Interferences between private wells of equal use are

normally not as serious as interference between the

larger yield wells supplying cities and industries.

FIGURE 5

CONE OF DEPRESSION AND INTERFERENCE WELLS

WELL WELL WELL
A 8 C
WATER LEVEL BEFORE PUMPING
WATER LEVEL, WELL A PUMPING
WATER LEVEL WELLS




A, B AND C PUMPING









(b) Overdraft of the Water-Bearing Bed or Aquifer

Overdraft of the water-bearing bed results from

pumping at a greater rate than the intake of water from

the recharge area. The water level is lowered and larger









pumps have to be installed to withdraw the water. Arte-

sian wells may cease flowing and pumping may be required

because of the lowered pressure surface. Overdraft occurs

for a variety of reasons, but it is usually a result of

excessive development of a well field by industries and

municipalities. Wasteful flow of artesian wells and low

rainfall will also contribute to overdraft.

Overdraft of an aquifer may lead to serious problems.

In the first place, the lowered water level will increase

costs of obtaining the water. Larger pumps, deeper wells,

and additional wells may be necessary to obtain the same

yield. Second, serious problems occur in Florida in

areas where the aquifer connects with the sea, or over-

laps salty water. Excessive withdrawals of the fresh

water may draw the salty water into the aquifer, result-

ing in contamination of the water supply.

(c) Contamination

Contamination includes pollution of the ground

water supplies by industrial, municipal, or private

wastes, and by salt-water encroachment into the aquifer.

Pollution of ground water by industrial and munici-

pal wastes and sewage does not seem to be widespread in

Florida at the present time. In the past considerable

quantities of municipal sewage and industrial wastes
146
were disposed of through discharge into drainage wells.


A









(d) Salt-Water Intrusion

Salt-water intrusion from the ocean or from under-

lying saline aquifers has been one of the major threats

to the ground water supplies of many coastal areas of

Florida, and is probably the greatest contamination

problem with respect to Florida's ground water today.

The State Board of Health considers 250 parts per

million chlorides sufficient to make water unsuit-
147
able for human consumption. In most of the area

of the state south of Lake Okeechobee the Floridan

aquifer has a salinity content that exceeds this

standard. If an artesian well in this area is allowed

to flow, the result will be contamination of the share-

owner water-table aquifer. Many artesian wells were

drilled in the past and were left uncapped and allowed

to flow uncontrolled. In others, the casing has deteri-

orated, resulting in contamination of the surrounding
148
ground water supplies. It is also known that salt

water from the geological past underlies most of the
149
artesian aquifers in Florida. If the aquifer is

excessively overdrawn. This salt water may move up

into the fresh-water supplies.

The hydraulic principle applicable to the re-

lation between salt and fresh water is illustrated in
150
Figure 6. This is the so-called Ghyben-Herzberg
151
principle. Fresh water is lighter than salt water

and will float on it. According to the above principle,



35


j









one foot of fresh water above sea level is necessary to

support a column of salt water 40 feet high. In other

words, a column of fresh water 41 feet high will balance

a column of salt water 40 feet high. When too much

fresh water is removed from the aquifer, it no longer

balances out the salt water, and the salt water moves

into the fresh-water supplies.

FIGURE 6
GHYBEN-HERZBERG PRINCIPLE OF SALT-FRESH WATER ASSOCIATION
UC 46O J MUA














There are several factors which contribute to salt-

water encroachment:

1. Loss of head through increased demands by
municipalities. The demands of agriculture, due largely











to modern irrigation, and of industry with hydraulic

mining, pulp and paper mills, and refrigeration are
v- ; SALT.

















examples.

2. Excessive drainage. High water levels in the
Everglades and under the Atlantors whic coastal ridge wereto salt-
water encroachment: 1







materially lowers of head through increased demands drainage
municipalities. The demands of agriculture, due largely






canals during the first quarter of the current century.

mining,The result has been excessive drainage and a lower water
examples.

2. Excessive drainage. High water levels in the

Everglades and under the Atlantic coastal ridge were

materially lowered by digging of the Everglades drainage

canals during the first quarter of the current century.

The result has been excessive drainage and a lower water









table that no longer holds in check the salt water from

the ocean.

3. Lack of protective works against tidewater in

bayous, canals, and rivers. This factor is particularly

prevalent in southern Florida between Miami and Fort

Lauderdale where numerous canals and old discharge

channels cut the Atlantic coastal ridge.

4. Improper location of wells. Wells in an area

subject to salt-water intrusion should be located as

far as may be economically feasible from the source of

possible salt-water intrusion and properly spaced with

respect to each other to prevent interference.

5. Highly variable annual rainfall with insuf-

ficient surface storage during droughts. The most

important single problem having to do with water con-

servation and control in Florida lies in the fact that

the rainfall is highly variable, resulting in vari-

ations in the piezometric surface.

6. Uncapped wells and leakage. Uncapped artesian

wells represent a serious loss of ground water and

inevitably result in lowered ground water levels. Even

when capped, many old artesian wells have broken or

corroded casings that permit highly saline water from

salt residuals to contaminate the fresh water in over-

lying strata.

Florida's answers to these ground water conservation

problems have been varied. The artesian well-capping


i








153
statute was passed in order to control waste through

wild-flowing wells and salt-water contamination from

highly mineralized wells. The problems of salt-water

intrusion are being met by the multipurpose water man-
154
agement districts and by the setting of salt-water

barrier lines.155 Pollution of the underground waters

has been controlled to some extent by the Department of
156
Environmental Regulation. Finally, the 1972 Water

Resources Law provides for the establishment of water

management districts which can regulate and control

many of the problems of well interference, overdrafts,

and to some extent salt-water intrusion. To appreciate

the reach and effect of these statutory controls, one

must view them against the background of the common law

rules governing ground water utilization. These rules

are the subject of the next two sections.

4. Legal Classification of Ground Water

Ground water has been divided into two separate

legal categories underground streams and percolating

waters and as thus classified is subject to two sepa-
157
rate bodies of legal rules. Apparently a lack of

hydrologic information led the early courts to make
158
these artificial classifications. A classic state-

ment of the early judicial attitude toward percolating

ground water is found in a statement made by the Ohio
159
Supreme Court in 1861: "Because the existence, origin,

movement and course of such waters, and the causes which

govern and direct their movements, are so secret, occult,









and concealed an attempt to administer any set of

legal rules in respect to them would be involved in hope-

less uncertainty, and would be, therefore, practically

impossible." Today it is generally agreed that virtually

all ground water is in constant movement under the land,

either in watercourses or through the pores of the earth,

and that the precise physical state is of no particular

consequence to the water's utilization.

The Florida Supreme Court has followed the tradition

of classifying ground water into underground streams and
160
percolating waters. However, recent scientific know-

ledge has changed many of the old ideas concerning per-

colating water, and the Florida court has indicated an

awareness of the nature of ground water and its inter-
161
relationship to other waters. Nevertheless, many of

the old rules remain, and an understanding of the two

legal classes of ground water is still important.

(a) Underground Streams and Percolating Waters -

Definitions

Underground streams have been distinguished from

percolating waters on the basis that they flow in fixed

or definite channels; their existence may be known or

ascertainable from surface indications or other methods
162
without excavations for that purpose. These sub-

terranean streams are presumed to have the same char-

acteristics as a surface stream: that is, a bed, banks,

and a channel of water. By contrast, percolating waters









are defined as those "subsurface waters which, without

any permanent, distinct, or definite channel, percolate

in veins or filter from the lands of one owner to those
163
of another."

(b) Presumption That Ground Water Is Percolating

Because of the difficulty of proof, it is well

settled in Florida, and in most other jurisdictions,

that ground water is presumed to be percolating unless

it is affirmatively shown that the water is flowing in
164
an underground stream. The burden of proof rests

with the party alleging such fact. This limitation

means that in most cases the water will be treated as

if it were percolating, which greatly reduces the legal

significance of the underground stream classification.

In many jurisdictions, however, it may be advantageous

to show that an underground stream exists, and it is

important to know the various factors looked at by the

courts.

(c) Evidence Allowable to Prove an Underground Stream

An underground stream must have essentially the

same characteristics as a surface stream, such as a

bed and banks, a well-defined and distinct channel, and

a current of water, although it need not flow con-
165
tinuously. The evidence allowable to prove the

existence of a subterranean stream includes surface

indications such as a line of plant growth which would
166
only occur over a wet area, waters disappearing into









167
the ground and reappearing a short distance away, or
168
a line of surface depressions or sinkholes. Other

proofs, such as the geological formation of the earth in
169
the vicinity, the sound of water passing underneath
170
the earth, and the interruption of the flow of other
171
wells or springs may also be shown.
172
In Tampa Waterworks Co. v. Cline the Florida

Supreme Court found that a well-defined underground

stream existed. The area in question was underlaid

with limestone, and the court noted that such evidence

as a line of surface depressions or sinks over the lands

of the parties indicated the course of a subsurface
173
stream as found in limestone regions. The court also

took into account the presence of fish both in the

plaintiff's downstream spring and in an excavation made

by the defendant, and the reappearance of dyes in the

downstream spring shortly after being placed in the

excavation as evidence of a well-defined underground
174
stream.

The Florida Supreme Court has also indicated, how-

ever, that the knowledge that the area "is largely under-

laid by a limestone strata, which is a waterbearing strata

that is commonly pierced and riddled with underground

caverns and watercourses" is not sufficient evidence to

establish the existence of a well-defined underground
175
stream supplying another landowner's spring.









(d) Significance of the Classification

The classification of ground water into underground

streams and percolating waters is significant because

of the different legal rules governing each class. It

is generally agreed that the riparian and prior appro-

priation doctrines governing surface watercourses are

equally applicable to subterranean streams, whereas

different doctrines may govern the rights of landowners

in percolating waters.

At least one court has completely done away with

the legal distinctions and held all underground waters

to be percolating waters, noting that "whether under-

ground waters move in a well-defined channel, either in

a generally confined direction as to the points of the

compass or spread out laterally, is merely a question
176
of difference or degree."

5. Underground Streams

The rights of adjoining property owners to the use

of water in underground streams have generally been held

to be the same as those of a riparian owner in the waters
177
of a surface watercourse. The actual rule applicable

depends on whether the particular jurisdiction follows

the "natural flow" or "reasonable use" doctrine with
178
respect to surface streams. In those states following

the prior appropriation doctrine, subterranean streams

are subject to appropriation under the same rules govern-
179
ing surface streams.









A 1951 Florida case illustrates one application of

the reasonable use rule to an underground stream, al-

though the case involved alleged unreasonable use of

defendant's land rather than unreasonable use or with-
180
drawal of the water as such. Plaintiff alleged that

the defendant, in the process of excavating for con-

struction of a yacht basin, caused the water flowing to

the plaintiff's spring from an underground stream to

cease to flow. The trial court ruled for the defendant

on demurrer, despite plaintiff's allegation that the

defendant knew that the underground stream supplied

plaintiff's spring, and that he proceeded with the

excavation anyway. The Florida Supreme Court reversed,

pointing out that, while the affirmative duty rested on

the plaintiff to show the invasion was wither an in-

tentional one or that the conduct was "negligent, reck-

less, or ultra hazardous," the complaint stated a cause
181
of action for an intentional invasion.

Three years later the case returned to the Supreme

Court, this time on appeal from a jury verdict for
182
defendant. The evidence at trial had established

that during the course of excavation the defendant's

employees, in an attempt to "cap" the hole, poured four

yards of ready-mix concrete into the crevice; the spring

then ceased to flow. The jury found for the defendant.

The Supreme Court reversed, holding that the only in-

ference which reasonable men could draw from the evidence









was that the concrete stopped the flow of the spring, and

that defendant's attempt to cap the hole was not in ac-

cord with good engineering practices and was therefore

unreasonable under the circumstances.

The Florida Supreme Court's decision was consistent
183
with the rule of the Restatement of Torts. If the

interference is intentional, the plaintiff must show that

defendant's use of his land was unreasonable; the utility

of the conduct is balanced against the harm to the plain-

tiff. If the interference is unintentional, the

defendant's conduct must have been either negligent, reck-

less, or ultrahazardous in order for the plaintiff to

recover damages.

6. Percolating Waters

Percolating waters "ooze, seep or filter through the
184
soil beneath the surface, without a defined channel."

Ground water is presumed to be percolating rather than

flowing in an underground stream because visible surface

indications and available scientific information are

usually inadequate to allow an accurate determination

of the source and movement of underground water. Some

states have even abandoned the underground stream classi-
185
fiction, and hold all ground waters to be percolating.

Although consumptive use rules with respect to per-

colating ground water are hopelessly fragmented and con-

fused, three major approaches can be discerned in the

East: the absolute ownership doctrine, the American rule,



44









and the correlative rights doctrine. In addition, many

western states now apply the prior appropriation system
186
to ground water.

(a) The Absolute Ownership Doctrine

According to the English or absolute ownership

doctrine, a landowner may extract an unlimited quantity

of percolating ground water from his land and use it on

overlying or distant lands, regardless of injury to
187
adjacent landowners. 187 The rule imposes liability only
188
for waste or for malicious injury to another. The

English rule is followed in Ohio, Maine, Massachusetts,
189
Mississippi, Rhode Island and Vermont.
The absolute ownership doctrine originated in Acton
190
v. Blundell, an English case decided in 1843. The plain-

tiff in that case was a manufacturer whose well was

affected by nearby mining operations. As the defendant

pumped water out of the shaft of his coal mine, he drew

the percolating water from under the plaintiff's well.

The plaintiff sought damages in an action on the case.

Although the defendant's conduct might have been action-

able if a surface watercourse had been involved, the
191
court refused to apply the law of surface waters because:1

no man can tell what changes these
underground sources have undergone in the
progress of time .. [T]here can be
no ground for implying any mutual consent
or agreement for ages past which is
one of the foundations on which the law as
to running streams is supposed to be built


Instead, the Acton court held that the defendant was









entitled to use the water as he saw fit, even if he in-

jured the plaintiff. This result was justified since

the defendant, as owner of the overlying land, had an

exclusive right to any percolating ground water

beneath his tract.

The absolute ownership doctrine recognizes a

vested property in the overlying landowner to per-

colating ground water beneath his property regardless

of whether he actually puts the water to use. It has

been said that "the percolating water belongs to the

owner of the land, as much as the land itself, or the
192 -
rocks and stones in it."92 However, since a landowner

has no rights against an adjoining landowner who also

withdraws ground water, it is somewhat misleading to

say that he owns "absolutely" the percolating water
193
under his land. Instead it would seem that the land-

owner does not really own the water until he had reduced
194
it to actual possession. The property right involved

is the landowner's exclusive right of access to the

ground water through his land, rather than ownership
195
of the underground water itself.

The absolute ownership rule was followed in many
196
American jurisdictions in the nineteenth century,
197
and is still recognized in a number of states today.

It is often criticized, however, because it fails to

account for the nature of ground water and because it

favors municipalities and other large users who are
198
able to drill deep wells.









ground water for farming operations on his land. The

City of New York, which owned an adjoining two-acre tract,

sank a number of wells to obtain water for sale to the

City of Brooklyn. When the wells interferred with plain-

tiff's farming operations, he sought injunctive relief.

Although the court conceded that there would be no lia-

bility under the absolute ownership doctrine, it never-

theless enjoined the defendant's extraction of ground

water for transportation and sale to distant users.

The American rule has displaced the older absolute

ownership doctrine in many jurisdictions, and is now

followed in Alabama, Connecticut, Illinois, Michigan,

New Hampshire, New York, Pennsylvania, Tennessee, and
206
West Virginia. Although the American rule differs

from the absolute ownership doctrine where the use of

ground water on non-overlying land is concerned, the

two rules are quite similar conceptually and the

American rule may be regarded as a modification of the
207
absolute ownership doctrine. Both rules place the

ownership of percolating waters in overlying landowners,

but the American rule places reasonable limitations

upon the exercise of ownership rights similar to

the law of private nuisance. Also, like the absolute

ownership doctrine, the American rule favors large users

at the expense of farmers and domestic users who often
208
have shallow wells and less powerful pumps.









(b) The American Rule


The American or reasonable use rule, allows a

landowner to use as much percolating ground water as

he needs, regardless of any adverse effect on other

landowners, as long as the water use is reasonably
200
related to the natural use of his overlying land.

The use must be beneficial; a malicious or wasteful
201
use is considered unreasonable per se and may be

enjoined even though the plaintiff has suffered no
202
actual damage. As a general rule, however, the use

of water on overlying land for agricultural, domestic,

mining or manufacturing purposes is deemed to be rea-
203
sonable.

The absolute ownership doctrine and the American

rule are virtually the same with respect to the land-

owner's right to use percolating ground water on over-

lying land, but they differ significantly in regard to

the extraction and transportation of ground water for

use in distant areas. The absolute ownership doctrine

permits ground water to be transported and used on non-

overlying land without liability even though neighbor-

ing landowners are injured. According to the American

rule, however, the sale or use of water on distant lands

is unreasonable and actionable if it impairs the ground

water supply of another landowner, even though the
204
defendant's use is beneficial.

The leading case on the American rule is Forbell
205
v. City of New York. The plaintiff in Forbell used


I f%









(c) The Correlative Rights Doctrine

Under the correlative rights doctrine, each land

owner over a common ground water pool has an equal and

correlative right to make a beneficial use of the water

on his overlying land. The correlative rights doctrine

is sometimes known as the "California rule" because it

was introduced by the California Supreme Court in Katz
209
v. Walkinshaw. The plaintiff in the Katz case was

using ground water for domestic and irrigation purposes

on land overlying an artesian basin. He brought suit

when the defendant began pumping the water for sale and

use outside the basin. The court stated that use of

ground water on nonoverlying land would not be allowed

if it caused injury to an overlying user, but went on to

declare that landowners above a common underground basin

have such equal rights in the underlying water so it must

be prorated among them when the available supply was not
210
sufficient to meet the needs of all.

Outside of California the doctrine provides that

ground water must be equitably apportioned among over-

lying owners in times of shortage, with each owner en-
211
titled to no more than his fair and just proportion.

This is sometimes known as the eastern correlative

rights doctrine. In some instances, particularly in

the case of irrigators, the correlative rights doctrine

limits the user to his proportionate share, determined

by comparing his surface area with the whole area over-
212
lying the water supply.









Some writers view the correlative rights doctrine

as an attempt to analogize the law of percolating
213
ground water to the law of surface streams. The

approach of these two doctrines, with their emphasis

on common rights to water, is similar. Using either

the surface water reasonable use rule or the corre-

lative rights doctrine, a number of eastern states
214
appear to have abandoned the American rule. Other

commentators regard the correlative rights doctrine
215
as an extension or modification of the American rule.

However, these two doctrines seem to rest upon different
216
concepts of water ownership. Under the correlative

rights doctrine, overlying owners have only usufructary

rights and not, as under the absolute ownership and

American rules, proprietary rights in the corpus of the
217
water itself. It is this concept of a usufructary

right which justifies the requirement that overlying
218
owners share the available water supply during shortages.

The surface water reasonable use rule rests on a similar

basis.

In two Florida cases on the point the Florida

Supreme Court has indicated it will invoke a reasonable

use rule similar to that governing riparian rights. In
219
Cason v. Florida Power Co. the defendant erected a dam

which obstructed the natural subterranean drainage of

plaintiff's land. In overruling the motion for a

directed verdict in favor of the defendant, the court

noted that the same principle of reasonable use applicable









to a surface stream should be applicable to percolating

water. The court stated that "The reasonableness of the

use of property by its owner must of necessity be deter-

mined from the facts and circumstances of particular

cases as they arise, by the application of appropriate

provisions or principles of law and the dictates of
220
mutual or reciprocal justice.
221
In Koch v. Wick, a more recent holding, the

Florida Supreme Court reaffirmed its application of

reasonable use principles. In that case the Board of

County Commissioners of Pinellas County sank wells on

the road right of way adjacent to plaintiff's property

and proceeded to pump water for individuals and munici-

palities in the county. The county was successfully en-

joined in the lower court action by the plaintiff. The

county board then leased a strip of land 60 feet in

width and 2,640 feet in length adjoining plaintiff's

land. The plaintiff again sought an injunction and

damages. The trial court granted the county's motion

to dismiss. On appeal, the Supreme Court noted that

Cason and Labruzzo had overruled the old rule that an

owner had an unrestricted right to draw percolating

water from his land and had adopted the rule that the

right to draw percolating waters is "bounded by reason-
222
ableness and beneficial use of the land. The court

stated that the question must be resolved on the reason-

ableness of the use, and apparently extended this doctrine









to municipalities as well as individuals. The lower

court was reversed.

Although the reasonable use rule as applied by the

court does not give definite answers as to the actual

amount of water that may be taken by overlying landowners,

it does recognize that the relationship of overlying

landowners is similar to that of riparian owners on a

water body.

(d) The Restatement of Torts Approach

Recently, the American Law Institute in its Re-

statement of Torts has recommended a revision of the

existing American rule in favor of an approach somewhat

similar to the surface water reasonable use rule. The

Restatement (Second) of Torts Section 858 provides:

(1) A proprietor of land or his grantee
who withdraws ground water from the land
and uses it for a beneficial purpose is
not subject to liability for interference
with the use of water by another, unless

(a) the withdrawal of ground water
unreasonably causes harm to a pro-
prietor of neighboring land through
lowering the water table or reduc-
ing artesian pressure,

(b) the withdrawal of ground water
exceeds the proprietor's reason-
able share of the annual supply or
total store of ground water, or

(c) the withdrawal of the ground
water has a direct and substantial
effect upon a watercourse or lake
and unreasonably causes harm to a
person entitled to the use of its
water.

(2) The determination of liability under
clauses (a), (b), and (c) of Subsection
(1) is governed by the principles stated in
SS 850 to 857.223

52









The Restatement includes all of the traditional

grounds of liability, but excludes some of the common
224
law defenses. It utilizes a reasonableness standard,

but the concept offers the overlying user less pro-
225
tection from liability than the American rule.2

Instead it utilizes principles that are similar to

the surface water reasonable use rule.

Under the Restatement an overlying user may be

liable for harm resulting from ground-water with-

drawals even though the resulting water use is bene-

ficial to the overlying surface. "Reasonableness" and

beneficial effect of use are not judged solely in re-

lation to use on the overlying land, but may vary with

the circumstances of the case.2 While the American

rule is intended to encourage maximum development of

ground water by overlying landowners on the theory that

they will be the most efficient users, the Restatement

approach is concerned with the interests of all water

users.

Wisconsin appears to be the only state to have

adopted the Restatement position. In State v. Michels
227
Pipleine Construction Inc., the defendant was con-

structing a large sewer line beneath the Root River

Parkway for the Metropolitan Sewer Commission of

Milwaukee. Since the project involved tunnelling at

depths of forty feet, the Michels tried to dewater the

construction site by pumping water from nearby wells.

These dewatering operations apparently interfered with

53


i









wells in the area and also caused damage to foundations,

basement walls and driveways due to subsidence.

The State brought suit to compel the defendant to

modify its construction activities in order to reduce

the harm to adjoinint landowners. The State argued that

the higher costs resulting from different construction

techniques should be borne by those who would benefit

from the sewer system. The trial court, however, dis-

missed the action, declaring that "there was no cause

of action on the part of an injured person concerning

his water table." On appeal, the Wisconsin Supreme

Court concluded that advancements in the science of

hydrology made the prevailing English rule obsolete.

Moreover, it felt that the hydrologic relationship

between ground water and surface water made it dif-

ficult justify applying an absolute ownership doctrine

to one class of water while subjecting the latter to a
228
reasonable use rule. Accordingly, it endorsed the

Restatement position, thereby assuring that a similar

allocation rule would be applied to both surface water

and ground water.

7. Subsidence

One issue that has received a good deal of atten-

tion recently is the extent to which common-law ground

water rules affect liability for subsidence caused by

ground water withdrawals.

The first American case to allow recovery for









229
subsidence was Cabot v. Kingman, which based liability

on deprivation of lateral support. A more recent case,
230
Gamer v. Town of Milton, held that ground water con-

sumptive use doctrines, such as the absolute ownership

rule, would not prevent liability for negligent conduct

when subsidence occurred. However, the Maryland court,

in Finley v. Teeter Stone Co., refused to allow re-

covery for subsidence caused by ground water withdrawals
231
when the pumping was conducted for a reasonable purpose.

The defendant in this case pumped water out of his quarry

pit in order to keep the excavation dry. This drained

the surrounding limestone acquifer and created solution

cavities under the land, which eventually caused sink-

holes to develop on the plaintiff's adjoining farm.

The court declared that since ground water was a transi-

tory and subject to "flowing, shifting, or changing

position in response to the vagaries of weather and

climatic conditions," it could not be considered part of

the soil's lateral support. The court also ruled out

subjacent support because there was no actural subsurface

invasion. Instead, the court concluded that there was

no liability for withdrawals which caused subsidence as

long as the water was used in connection with the legiti-

mate use of the defendant's land. Finding that his

quarrying operations met this requirement, the Maryland
232
court found in favor of the defendant.2

Section 818 of the Restatement of Torts reflects









increasing concern for the victims of subsidence. The

revised section now provides that "One who is privileged

to withdraw subterranean water, oil, minerals, or other

substances from under the land is not for that reason

privileged to cause a subsidence of the others' land by
233
such withdrawal. The commentary states that section

818 applies to the withdrawal of any solid, liquid or

gaseous substance from under another's land even though

the withdrawal is legally permitted. Nor does the

means of withdrawal make any difference. Thus, accord-

ing to section 818, one who withdraws ground water may

be liable for subsidence damages regardless of the pre-

vailing ground water allocation rule.

Smith-Southwest Industries v. Firewood Development
234
Co. is the most recent case to address this issue. In

that case the plaintiffs attempted to recover for sub-

sidence to their property caused by the defendant's with-

drawal of large quantities of ground water by means of

high-capacity pumps. The trial court, relying on the

absolute ownership doctrine, granted a summary judg-

ment for the defendants. The intermediate appellate

court reversed, finding that liability for subsidence

damages might be predicated on theories of negligence
235
and nuisance in fact. On appeal, however, the Texas

court affirmed the trial court's decision for the de-

fendants, but also declared that it would impose lia-

bility in the future for subsidence caused by negligence
in pumping or drilling236
in pumping or drilling.









Recent cases suggest that the courts will provide

some protection against damages from subsidence even

when the English or absolute ownership rule is recognized.

It remains to be seen, however, whether the strict lia-

bility approach of the Restatement of Torts of the less

restrictive negligence theory will prevail.

D. An Evaluation of Common Law Water Rights

Unfortunately, the riparian system is not responsive

to the needs of many water users. Ideally, water rights

should be both definite and secure: The water right

should be clearly defined with respect to quantity and

in terms of its relation to the rights of other users.
237
The reasonable use rule, however, is vague and uncertain;

one cannot know with any precision who may use the avail-

able water, how much can be used, or for what purpose it
238
can be used. This uncertainty exists because any use

must be reasonable with respect to the uses of otherri-
239
parian owners, and these uses are constantly changing.2

The uncertain nature of the user's water right under

the riparian system is further aggravated because mecha-

nisms for resolving controversies among water users are

severely limited. Not only is litigation time consuming,

expensive, and uncertain in its outcome, but the results

of successful litigation are often narrow and limited

in scope. First, the judgment relates only to the

parties before the court and not other water users.

Since the courts will usually not apportion a stream









between competing users, the judgment will be "all or

nothing" for one party or another. Moreover, a judg-

ment pertains only to the present facts and new develop-

ments which change the relative positions of the parties

cannot adequately be dealt with absent further
240
litigation.

Another criticism is that the riparian system tends
241
to foster locational inefficiencies. In most states

it restricts excessively the use of the water for the
242
benefit on non-riparian land. Since many beneficial

uses consume water some distance from the point of

diversion, these locational restrictions probably re-
243
sult in less efficient water use. Thus, while the

riparian system possesses the advantage of flexibility,

insecurity of the water right and locational restrictions

often inhibit efficient water use.

As far as ground water allocation doctrines are

concerned, the correlative rights doctrine may be more

equitable than either the absolute ownership doctrine

or the American rule since small users may be better

protected and the effects of a water shortage are borne

proportionately by all users. In addition, hydrological

considerations favor the correlative rights doctrine

since the hydrologic interrelation between percolating

ground water and surface water supports a uniform allo-
244
cation rule for all forms of water. Only the corre-

lative rights doctrine sufficiently resembles the








surface water reasonable use rule, both in terms of an

allocative standard and in terms of an underlying

theory of property interest in the water, to allow the

courts to fashion a rational and integrated law of
245
water allocation.

On the other hand, the correlative rights doctrine

is subject to many of the sar.e criticisms as the sur-

face water reasonable use rule. The correlative rights

rule is so indefinite that it is exceedingly difficult
246
to apply to varying conditions. Moreover, it offers

no security to early developers by protecting the water

supply on which they have relied, nor does it permit

landowners to acquire a more secure right to an adequate
247
supply of water by purchase or contract.









1. Foley, Water & The Laws of Nature, 5 Kan. L. Rev.

492, 496 (1957).


2. Tampa Waterworks Co. v. Cline, 20 So. 780 782

(Fla. 1896), adopting the classes of water from

Frazier v. Brown, 12 Ohio St. 29A; 298 (1861).


3. Thomas, Hydrology v. Water Allocation in the East-

ern United States, in The Law of Water Allocation

in the Eastern United States 164, 170 (Haber &

Bergen ed. 1956).


4. Consumptive riparian rights have no legal status in

the eight western states which adhere to the

"Colorado doctrine." These states include Arizona,

Colorado, Idaho, Montana, Nevada, New Mexico, Utah,

and Wyoming. Riparian rights exist along with ap-

propriative water rights in the eleven "California

doctrine" states. These include Alaska, California,

Kansas, Mississippi, Nebraska, North Dakota,

Oklahoma, Oregon, South Dakota, Texas and Washington.

In these states, generally located along the Pacific

Coast in the Great Plains area, riparian rights were

recognized before the prior appropriation system

was adopted. However, since the riparian and appro-

priative systems do not work well together, most

"California doctrine" states limit the exercise of









riparian rights in some fashion. Trelease, Coordi-

nation of Riparian and Appropriative Rights to the

Use of Water, 33 Tex. L. Rev. 24 (1954).


5. Pasadena v. Alhambra, 33 Cal.2d 908, 926, 207 P.2d

17 (1949); Bailey v. Idaho Ir-. Co., 39 Idaho 354,

358, 227 P. 1055 (1924).


6. Smith v. O'Hara, 43 Cal. 371, 375 (1872). This

protection of the junior appropriative right may

be had against unlawful acts of senior appropriators

as well as by others.


7. 1A G. Thompson, Commentaries on the Modern Law of

Real Property S 263 (1964).


8. Hutchins, Background and Modern Developments in

Water Law in the United States, 2 Nat. Res. J. 426,

417 (1962). Although the date of priority is gen-

erally established by the date of public notice or

by the date of application for a permit, the ap-

propriation is effectively secured merely be apply-

ing the water to the stated use. Davis, Australian

and American Water Allocation Systems Companred, 9

B.C. Ind. & Com. L. Rev. 647, 688 (1968).


9. 5 R. Powell, The Law of Property 11 735 (1973).


10. 1 W. Hutchins, Water Rights Laws in the Nineteen

Western States 491 (1971).









11. N.D. Cent Code S 61-04-04 (1960); Utah Code Ann.

73-3-2 (Supp. 1977).


12. 1 W. Hutchins, supra note 10, at 517.


13. Davis, supra note 8, at 688.


14. Johnson, The Challenge of Prescriptive Water Rights,

30 Tex. L. Rev. 669, 673 (1952).


15. Ariz. Rev. Stat. Ann. S 45-147 (Supp. 1978); Calif.

Water Code 106, 1254, 1460 (1971); Kan. Stat.

Ann. 82a-707(b) (1969); Ore. Rev. Stat. 540.140,

(1960); Wash. Rev. Code Ann. S 90.03.040 (1972);

Wyo. Stat. Ann. 41-3 (1959).


16. Colo. Const. Art XVI, 6; Neb. Const. Art. XV, S 6.


17. Davis, supra note 8, at 688-89.


18. Rejected. S.B. 69, 60th Sess., Ark. G.A. (1955).


19. Study recommendation not adopted. See Institute Of

Law and Government, A Study Of The Riparian and

Prior Appropriative Doctrines of Water Law (School

of Law, Univ. of Ga. 1955).


20. Rejected by Legislative Study Commission. See Fla.

Water Resources Study Comm'n,Florida's Water Resources:

A Report To The Governor and The 1957 Legislature

14, 15 (1956).









21. Study recommendation not adopted. See The Law of

Water Allocation In the Eastern United States 49-

70, 441-90 (D. Haber & S. Bergen eds. 1958) (sets

forth and disusses the proposed statute).


22. Adopted. Miss. Code Ann. 5Q56-04 (Supp. 1971).


23. Rejected. H.B. 298. S.B. 153, N.C.G.A. (1955).


24. Rejected. H.B. 1085. S.B. 43, S.C.G.A. (1956).


25. Proposal not adopted. See discussion in Coates,

Present and Proposed Legal Control of Water Resources

in Wisconsin, 1953 Wis. L. Rev. 256.

26. The veto of appropriative type legislation in West

Virginia was a topic of discussion at the Evniron-

mental Law Symposium. May 23-24, 1970. Morgantown,

W. Va.


27. Miss. Code Ann. S 51-3-7 (1972). See also Champion,

Prior Appropriation in Mississippi: A Statutory

Analysis, 39 Miss. L.J. 1 (1967).


28. F. Maloney, R. Ausness & J. Morris, A Model Water

Code 76 (1972).


29. See


30. See 1 H. Farnham, The Law of Waters and Water Rights

278-342 (1904).









31. A riparian owner is one who owns land touching on

the bank of a watercourse. See Agnor, Riparian

Rights in the Southeastern States, 5 S.C.L.Q. 141,

142 (1952). As between riparian owners, the lower

owner is, of course, the one farther downstream.


32. See


33. Hanks, The Law of Water in New Jersey, 22 Rutgers L.

Rev. 621, 628-29 (1968).


34. Kinyon, What Can a Riparian Proprietor Do?, 21 Minn.

L. Rev. 512, 527 (1937).


35. Evans v. Merriweather, 4 Ill. 492 (1842).


36. Meng v. Coffey, 93 N.W. 713, 715-16 (Neb. 1903);

Crawford Co. v. Hathaway, 93 N.W. 781 (Neb. 1903);

Hough v. Porter, 89 P. 1083 (Ore. 1909); Salem

Flouring Mills Co. v. Lord, 69 P. 1033, (Ore. 1902);

Martin v. Burr, 228 S.W. 543 (Tex. 1921).


37. Spence v. McDonough, 42 N.W. 371 (Iowa 1889);

Canton v. Shock, 63 N.W. 600 (Ohio 1902); Filbert

v. Dechert, 22 Pa. Super. 362 (1903); Beuscher,

Appropriation Water Law Elements in Riparian

Doctrine States, 10 Buffalo L. Rev. 448, 452 (1961).


38. Prentice v. Geiger, 74 N.Y. 341 (1878); Pennsylvania

R. Co. v. Miller, 3 A. 780 (Pa. 1886); Lone Tree

Ditch Co. v. Cyclone Ditch Co., 128 N.W. 596









(S.D. 1910); Watkins Land Co. v. Clements, 86 S.W.

733 (Tex. 1905); Nielson v. Sponer 89 P. 155 (Wash.

1907).


39. Harvey Realty Co. v. Wallingford, 150 A. 60 (Conn.

1930); Robertson v. Arnold, 186 S.E. 806 (Ga. 1936);

Roberts v. Martin, 77 S.E. 535 (W. Va. 1913); Comment,

Development of Riparian Law in Alabama, 12 Ala. L. Rev.

155, 158 (1959).


40. Guynn v. Wabash Water & Light Co., 104 N.E. 849

(Ind. 1914); Note, Water Rights in Indiana, 32 Ind.

L.J. 39, 42 (1956).


41. Teass, Water and Water Courses-Riparian Rights-

Diversion of Storm or Flood Waters for Use on Non-

Riparian Lands, 18 Va. L. Rev. 223, 236 (1932).


42. Restatement (Second) of Torts 850A, Scope Note

(Tent. Draft No. 17, 1971).


43. Only Georgia, New Jersey, Pennsylvania and West

Virginia expressly adhere to the natural flow

doctrine. Robertson v. Arnold, 186 S.E. 806

(Ga. 1936); McCord v. Big Brothers Movement, Inc.,

185 A. 480 (N.J. 1936); Palmer Water Co. v.

Lehighton Water Supply Co., 124 A. 747 (Pa. 1924);

McCausland v. Jarrell, 68 S.E.2d 729 (W. Va. 1951).









44. In spite of this, the natural flow and reasonable

use rules often tend to become blended or confused

in practice. Davis, Water Rights in Iowa, 41

Iowa L. Rev. 216, 218 n.8 (1956).


45. 5 R. Powell, The Law of Real Pro-erty, 11 713 (1976);

Restatement (Second) of Torts 853, comments c, d,

& e (Tent. Draft No. 17, 1971).


46. Trelease, The Concept of Reasonable Beneficial Use

in the Law of Surface Streams, 12 Wyo. L.J. 1, 16

(1957).


47. 6A American Law of Property 28.55 (A.J. Casner, ed.

1954); but see Trelease, Alternatives to Appropriation

Law, 6 Denver J. of Int'l L. & Pol. 283, 297 (1976).


48. Haar & Gordon, Riparian Water Rights vs. a Prior

Appropriation System: A Comparison, 38 B.U.L. Rev.

207, 240 (1958).


49. Restatement (Second) of Torts 850A, comment d

(Tent. Draft No. 17, 1971).


50. Maloney, Capehart & Hoofman, Florida's "Reasonable

Beneficial" Water Use Standard: Have East and West

Met?, 31 U. Fla. L. Rev. 253, 256-262 (1979).


51. See also Grimes, Lex Aquae Arkansas, 27 Ark. L. Rev.

429, 442 (1973).









52. Restatement (Second) of Torts 850A, Comment on

clause (a) (1979) [Hereinafter cited as "Restatement

(2d) ".) ]


53. Comment, Acquisition of the Right to Use Water,

29 Tul. L. Rev. 554, 556 (1955).


54. Ausness, Water Permits ir a Riparian State: Problems

and Proposals, 66 Ky. L.J. 191, 199-201 (1977).


55. Harris v. Brooks, 283 S.W.2d 129 (Ark. 1955); Taylor

v. Tampa Coal Co., 46 So.2d 392 (Fla. 1950); Hoover

v. Crane, 106 N.W.2d 563 (Mich. 1960); Johnson v.

Seifert, 100 N.W.2d 689 (Minn. 1960); Bollinger v.

Henry, 375 S.W.2d 161 (Mo. 1964).


56. Water Pollution interfering with the reasonable uses

of lower riparian owners has been held unreasonable.

See, e.g., Stanton v. Trustees of St. Joseph's

College, 254 A.2d 597 (Mc. 1969). Although the

courts have considered pollution as a factor to be

weighed in the determination of whether a use is

"reasonable," it is important to note that most

states, including Florida, have a separate statutory

scheme for the regulation of water pollution. See

Fla. Stat. 403.011-.261 (1977).


57. Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955).









58. Reynolds Metal Co. v. Ball, 217 Ark. 579, 232

S.W.2d 441 (1950).


59. See, e.g., Stamford Extract Mfg. Co. v. Stamford

Rolling Mills Co., 101 Conn. 310, 125 A. 623 (1924)

(upper riparian's use held reasonable where dis-

charges after best available treatment neither sub-

stantially nor appreciably contaminated the water

and where many other new factories and cities were

possible sources of pollution); Hazard powder Co.

v. Sommersville Mfg. Co., 78 Conn. 171, 61 A. 519

(1905) (where upper riparian's water wheel in-

stallation found excellently arranged and adapted

to size, capacity, and varying flows of the river

and where the use was found to follow the custom

of most uses on the river, use held reasonable);

Davis v. Getchell, 50 Me. 602 (1862) (where volume

of small stream in ordinary course was found in-

sufficient for any practical use, detention for

reasonable time to make water power useful and

valuable held reasonable); Thompson v. Enz, 379

Mich. 667, 154 N.W.2d 473 (1967); Red River Roller

Mills v. Wright, 30 Minn. 249, 15 N.W. 167 (1883)

(use found unreasonable where lower riparian in-

jured and upper riparian failed to show the

character of the stream, because what might be

reasonable on one stream adapted and used for

certain purposes might not be proper upon another

68









stream of a different character used for different

purposes); Davis v. Town of Harrisonburg, 116 Va.

864, 83 S.E. 491 (1914) (upper riparian's hydro-

electric plant found adapted to the ordinary capacity

of the stream; therefore, dentention of water for

reasonable time during drough, held reasonable);

Timm v. Bear, 29 Wis, 25:, 266 (1871) (upper riparian's

interference with stream flow held unreasonable where

his mills required 50% more than the ordinary supply

of water in the stream); Restatement.(2d), S 850A,

comment on clause (b).


60. Restatement (2d) 850A, comment on clause (c).


61. Id. See, e.g., Taylor v. Tampa Coal Co., 46 So.2d

392 (Fla. 1950) (irrigation versus recreational

value); Higday v. Nickolaus, 469 S.W.2d 859 (Mo.

App. 1971) (value of city's investment weighed);

Borough of Westville v. Whitney Home Builders, 40

N.J. Super, 62, 122 A.2d 233 (Super. Ct. App. Div.

1956) (aesthetic impairment and recreational value

versus developer's investment).


62. Restatement (2d), 850A, comment on clause (d).


63. Lamb v. Dade Cty., 159 So.2d 477, 479 (Fla, 3d

D.C.A. 1964) (interference with salinity control

system); Higday v. Nickolaus, 469 S.W.2d 859, 871

(Mo. App. 1971) (assurance of wholesome water supply

to public). See generally Hart v. D'Agostini,








7 Mich. App. 319, 151 N.W.2d 826 (1967)(temporary

interference with groundwater allowed where sanitary

sewer trunk line benefitted the area); 42 A.L.R.3d

426 (1972)(propriety of injunctive relief against

diversion of water by municipally incorporated public

utility); Borough of Westville v. Whitney Home

Builders, 40 N.J. Super., 62, 122 A.2d 233 (Super.

Ct. App. Div. 1956) (public policy recognizing social

importance of sewage disposal plants).


64. Restatement (2d) 850A, comment on clause (e) (citing

Gehlen v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897);

Elliot v. Fitchburg R.R. Co., 10 Cush. 191 (Mass.

1852); Hazard Powder Co. v. Sommersville Mfg. Co.,

78 Conn. 171, 61 A. 519 (1905); Heise v. Schulz,

167 Kan. 34, 204 P.2d 706 (1949); Louisville v.

Tway, 297 Ky. 565, 180 S.W.2d 278 (1944); Meyers v.

Lafayette Club, 197 Minn. 241, 266 N.W. 861 (1936);

Bollinger v. Henry, 375 S.W.2d 161 (Mo. 1964);

Montelious v. Elsea, 11 Ohio St. 2d 57, 161 N.E.2d

675 (1959). See also Tampa Water Works Co. v. Cline,

37 Fla. 586, 20 So. 780 (1896); Lake Gibson Land Co.

v. Lester, 102 So.2d 833 (Fla. 2d D.C.A. 1958).


65. Scott v. Slaughter, 237 Ark. 394, 373 S.W.2d 577

(1964); Conobre v. Fritsch, 92 Ohio App. 520, 111

N.E.2d 38 (1952).









66. Restatement (2d), 850A, clause (f), comments h & i,

(citing Thomas v. LaCotts, 222 Ark. 161, 257 S.W.2d

936 (1953)); Rancho Santa Margarita v. Vail, 11 Cal.

2d 501, 81 P.2d 533 (1938); Colorado Springs v.

Bender, 148 Colo. 458, 366 P.2d 552 (1961) (under-

ground stream); Hazard Powde. Co. v. Sommersville

Mfg. Co., 78 Conn. 171, 31 A. 519 (1905); Wilkes v.

Perry, 92 Iowa 417, 60 N.W. 727 (1894); Crowley v.

District Court, 108 Mont. 89, 88 P.2d 23 (1939);

Warner Valley Stock Co. v. Lynch, 215 Or. 523, 336

P.2d 884 (1959).

More recent decisions weighing the practicality of

avoiding the harm include: Scott v. Slaughter, 237

Ark. 394, 373 S.W.2d 577 (1964) (dam lowered two

feet); Collens v. New Canaan Water Co., 155 Conn.

477, 234 A.2d 825 (1967) (other sources were avail-

able); MacArtor v. Graylyn Crest 111 Swim Club, 41

Del. Ch. 26, 187 A.2d 417 (1936) (groundwater,

adjusting method of use found impractical).


67. Restatement (2d), 850A, comment on clause (g).


68. Id., clause (g), comment j. See, e.g., Lingo v. City

of Jacksonville, 253 Ark. 63, 522 S.W.2d 403 (1975)

(groundwater); Harris v. Brooks, 225 Ark. 436, 283

S.W.2d 129 (1955); Half Moon Bay Land Co. v. Cowell,

173 Cal. 543, 160 P. 675 (1916); Wiggins v.

Muscupiabe Land and Water Co., 113 Cal. 182, 45 P.









160 (1896); Harris v. Harrison, 93 Cal. 676, 29 P.

325 (1892); Collens v. New Canaan Water Co., 155

Conn. 477, 234 A.2d 825 (1967) (groundwater); Bliss

v. Kennedy, 43 Ill. 67 (1867); Meng v. Coffey, 67

Neb. 500, 93 N.W. 713 (1903). Many of the cares

cited are from prior appropriation states in the

West because these states also recognize, or did

recognize, the riparian doctrine of reasonable use.


69. See Maloney, Capehart & Hoofman, supra note 50, at

282.


70. Davis, Coblentz & Titelbaum, Waters and Water

Rights, S 612 at 42 (R. Clark ed 1976). (citing

Dumont v. Kellog, 29 Mich. 420, 18 Am. Rep. 102

(1874), and Bliss v. Kennedy, 43 Ill. 67 (1867).

Accord, 78 Am. Jur. 2d Waters S 285 (1975).


71. Restatement (2d) 850A, clause (h), comment 1 (citing

McCarter v. Hudson Cnty. Water Co., 70 N.J. Eq.

695, 65 A. 489 (Ch. 1906).

72. Id. (citing Strobel v. Kerr Salt Co., 164 N.Y. 303,

58 N.E. 142 (1900); Harris v. Brooks, 225 Ark. 436,

283 S.W.2d 129 (1955).

Another commentator has stated flatly that where

"different lawful and reasonable uses are in-

herently mutually exclusive, the prior in time will

prevail...." Grimes, supra note 51, at 444.









80. Watkins Land Co. v. Clements, 86 S.W. 733 (Tex.

1905); Yearsley v. Cater, 270 P. 804 (Wash. 1928).


81. Waite, Beneficial Use of Water in a Riparian

Jurisdiction, 1969 Wis. L. Rev. 864, 872.


82. Boehmer v. Big Rock Irrigation Dist., 48 P. 908

(Cal. 1897); Yearsley v. Cater, 270 P. 804 (Wash.

1928).


83. Levi & Schneeberger, The Chain and Unit of Title

Theories for Delineating Riparian Lands: Economic

Analysis as an Alternative to Case Precedent, 21

Buffalo L. Rev. 439, 442 (1972).


84. Clark v. Allaman, 80 P. 571 (Kan. 1905); Jones v.

Conn, 64 P. 855 (Ore. 1901); Slack v. Marsh, 11

Phila. 543 (C.P. Pa. 1875); Restatement of Torts

843, comment c (1939).


85. Sparks Mfg. Co. v. Town of Newton, 41 A. 385 (N.J.

1898) rev'd on other grounds, 45 A. 596 (N.J. 1900).

See also 1 Kinney, The Law of Irrigation and Water

Rights 798 (2d ed. 1912); 6A American Law of Property

S 28.55 (A.J. Casner, ed. 1954).


86. Farnham, Permissible Extent of Riparian Land, 7

Land & Water L. Rev. 31, 57 (1972).








73. Restatement (2d), 850A, clause (1), comment m,

(citing Strobel v. Kerr Salt Co., 164 N.Y. 303, 58

N.E. 142 (1900)); State v. Michels Pipeline Constr.

Inc., 63 Wis. 2d 278, 217 N.W.2d 339 (groundwater),

modified, 63 Wis. 2d 278, 219 N.W.2d 308 (1974);

MacArtor v. Graylyn Crest III, Swim Club, Inc.,

41 Del. Ch. 26, 187 A.2d 417 (1963) (groundwater);

United States v. 531.13 Acres of Land, 244 F. Supp.

895 (W.D.S.C. 1965) (compensation due for public

taking of riparian right to use of river flow).


74. United States v. Gerlach Livestock Co., 339 U.S.

725 (1950).


75. Restatement (2d), 850A, clause (1), comment m

(citing Furrer v. Talent Irrigation Dist., 258

Or. 494, 466 P.2d 605 (1970)).


76. Farnham, The Permissible Extent of Riparian Land,

7 Land & Water L. Rev. 31 (1972).


77. Rancho Santa Margarita v. Vail, 81 P.2d 533 (Cal.

1935); L. Kinney, The Law of Irrigation and Water

Rights 789 (2d ed. 1912).


78. Title Ins. & Trust Co. v. Miller & Lux, 190 P. 433

(Cal. 1920); 5 R. Powell, The Law of Real Property,

supra note 45, at 714.


79. Anaheim Union Water Co. v. Fuller, 88 P. 978

(Cal. 1907).









87. Johnson & Knippa, Transbasin Diversion of Water,

43 Tex. L. Rev. 1035, 1036 (1965); Recent Important

Decisions, Waters and Watercourses-Riparian Land-

Watershed, 20 Mich. L. Rev. 123 (1921). According

to Professor Waite the source of title test and one

version of the unity of title test are not concerned

with the watershed limitation. The other version

adds to the unity of title test the requirement that

the land lie within the watershed of the watercourse

to which it is riparian. Waite, Beneficial Use of

Water in a Riparian Jurisdiction, 1969 Wis. L. Rev.

864, 873. See also Sayles v. City of Mitchell, 245

N.W. 390 (S.D. 1932). Professor Clark declares

this to be the general rule. 1 Waters and Water

Rights 53.5(c) (R. Clark, ed. 1967). On the

other hand, Professor Casner contends that the unity

of title definition without the watershed limitation

is the general rule. 6A American Law of Property

S 28.55 (A.J. Casner, ed. 1954).


88. Hudson v. West, 306 P.2d 807 (Cal. 1957); Clark v.

Allaman, 80 P. 571 (Kan. 1905); Sayles v. City of

Mitchell, 245 N.W. 390 (S.D. 1932); Watkins Land

Co. v. Clements, 86 S.W. 733 (Tex. 1905); Miller

v. Baker, 122 P. 604, 605 (Wash. 1912).









89. Harrell v. City of Conway, 271 S.W.2d 924, 927

(Ark. 1954); Sturtevant v. Ford, 182 N.E. 560

(Mass. 1932); Stratton v. Mount Hermon Boy's

School, 103 N.E. 87 (Mass. 1913); McCarter v.

Hudson County Water Co., 65 A. 489, 494-95 (N.J.

1906); Virginia Hot Springs Co. v. Hoover, 130

S.E. 408 (Va. 1925); Town of Gordsonville v.

Zinn, 106 S.E. 508, 511 (Va. 1921); Comment, 34

N.C.L. Rev. 247, 247-48 (1956).


90. 2 H. Farnham, The Law of Waters and Water Rights

1571 (1904).


91. Anaheim Union Water Co. v. Fuller, 88 P. 978

(Cal. 1907); Note, Limitation on Diversions from

the Watershed: Riparian Roadblock to Beneficial

Use, 23 S.C.L. Rev. 43 (1971). Most industrial and

municipal uses return up to 90 percent of the water

diverted; some water used for irrigation is also re-

turned. Johnson & Knippa, Transbasin Diversion of

Water, 43 Tex. L. Rev. 1035, 1057 (1965).


92. Murphy, A Short Course on Water Law for the Eastern

United States, 1961 Wash. U.L.Q. 93, 94-95.


93. Martz, Water for Mushrooming Population, 62 W. Va.

L. Rev. 1, 11 (1959); O'Connell, Iowa's New Water

Statute-The Constitutionality of Regulating Existing

Uses of Water, 47 Iowa L. Rev. 549, 557 (1962); Note,








The Riparian Rights Doctrine in South Carolina, 21

S.C. L. Rev. 757, 769 (1969).


94. Marquis, Freeman & Heath, The Movement for New Water

Rights Laws in the Tennessee Valley States, 23 Tenn.

L. Rev. 797, 832 (1955).


95. Arkansas, Massachusetts, New Jersey, and Virginia.


96. Gillis v. Chase, 31 A. 18 (N.H. 1891); Lawrie v.

Sillsby, 74 A. 94 (Vt. 1909).


97. Waite, Beneficial Use of Water in a Riparian

Jurisdiction, 1969 Wis. L. Rev. 864, 875.


98. Metropolitan Util. Dist. v. Merritt Beach Co., 140

N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P. 855

(Ore. 1901); Texas Co. v. Burkett, 296 S.W. 273

(Tex. 1927).


99. Poire v. Serra, 106 A.2d 39 (N.H. 1954); Smith v.

Stanolind Oil & Gas Co., 172 P.2d 1002 (Okla. 1946);

Lawrie v. Sillsby, 74 A. 94 (Vt. 1909); Farnham,

The Improvement and Modernization of New York Water

Law Within the Framework of the Riparian System, 3

Land & Water L. Rev. 377, 413 (1968).


100. Note, Property Rights--Riparian Rights, 34 N.C.L.

Rev. 247, 251 (1956).


101. 6A American Law of Property, supra Note 47, S 28.56.









102. Metropolitan Util Dist. v. Merritt Beach Co., 140

N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P.2d

855 (Ore. 1901); Texas Co. v. Burkett, 296 S.W.

273 (Tex. 1927).


103. Lawry v. Sillsby, 74 A. 94 (Vt 1909); Poire v.

Serra, 106 A.2d 39 (N.H. 1954); Smith v.

Stanoline Oil & Gas Co., 172 P.2d 1002 (Okla. 1946).


104. Note, 34 N. Car. L. Rev. 247, 251 (1956).


105. Trelease, Coordination of Riparian and Approp-

riative Rights, 33 Tex. L. Rev. 24, 56-57 (1954).


106. Winchell v. Clark, 68 Mich. 64, 73, 35 N.W. 907,

913 (1888); Texas Co. v. Burkett, 117 Tex. 16, 25,

296 S.W. 273, 276 (1927); Hite v. Town of Luray,

175 Va. 218, 224, 8 S.E.2d 369, 371 (1940).


107. Davis, Australian and American Water Allocation

Systems Compared 9 B.C. Indus. & Com. L. Rev. 647,

683 (1968).


108. Young v. City of Asheville, 241 N.C. 618, 86

S.E.2d 408 (1955); 5 R. Powell, supra note 45 at

para. 719.


109. 78. Duckworth v. Watsonville Water & Light Co.,

158 Cal. 206, 110 P. 927 (1910); Texas Company v.

Burkett, 117 Tex. 16, 296 S.W. 273 (1927); Note,

supra note 104, at 250.

78








110. Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909);

Roberts v. Martin, 72 W. Va. 92, 77 S.E. 535 (1913);

Heilbron v. Fowler Switch Canal Co., 75 Cal. 426,

432, 17 P. 535, 538 (1888); Kennebunk v. Maine

Turnpike Authority, 147 Me. 149, 84 A.2d 433 (1951);

Contra Gillis v. Chase, 67 -.H. 161, 31 A.18 (1891);

Lawrie v. Silsby, 82 V-. 505, 74 A.94 (1909); Note,

Are Water Rights Marketable in Wisconsin? 1966 Wis.

L. Rev. 942, 946, n. 18.


111. Pernell v. Henderson, 220 N.C. 79, 16 S.E.2d 449

(1941); Town of Purcellville v. Potts, 179 Va. 514,

19 S.E.2d 700 (1942); Webster v. Harris, III Tenn.

668, 69 S.W. 782 (1902); Ziegler, Acquisition and

Protection of Water Supplies by Municipalities, 57

Mich. L. Rev. 349, 357 (1954); Marquis, Freeman &

Heath, supra note 94, at 813.


112. Buescher, Appropriation Water Law Elements in

Riparian Doctrine States, 10 Buffalo L. Rev. 448,

445 (1961).


113. Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600

(1902); St. Anthony Falls Water Power Co. v. St.

Paul Water Commissioners, 56 Minn. 485, 58 N.W. 33

(1894); Grogan v. Brownwood, 214 S.W. 522 (Tex. 1919);

Trelease, The Concept of Reasonable Beneficial Use

in the Law of Surface Streams, 12 Wyo. L. J. 1, 4

(1965).









114. Davis, supra note 107, at 684.


115. Waite, supra note 81, at 875; Sibbett v. Babcock,

124 Cal. App. 567, 269 P.2d 42 (1954); S.O. & C. Co.

v. Ansonia Water Co., 83 Conn. 611, 78 A. 432 (1910);

Manier v. Myers & Johns, 43 Ky 514 (1844); Harmon

v. Carter, 59 S.W. 656 (Tenn. 1900); Martin v. Burr,

III Tex. 57, 228 S.W. 543 (1921); Kirk v. Hoge, 122

Va. 519, 97 S.E. 116 (1918); Town of Gordonsville v.

Zinn, 129 Ba. 542, 106 S.E. 508 (1921).


116. Northern California Power Co. v. Flood, 186 Cal.

301, 199 P. 315 (1921); 5 R. Powell, supra note 31,

at para. 720.


117. Buescher, supra note 37, at 452.


118. Harnsberger, Prescriptive Water Rights in

Wisconsin, 1961 Wis. L. Rev. 47 48-49.


119. Shellow v. Hagen, 9 Wis.2d 506, 101 N.W.2d 694

(1960).


120. Harnsberger, supra note 118, at 61.


121. Stewart v. White, 128 Ala. 202, 30 So. 526

(1901); Moal v. Boyd, 116 Tex. 82, 286 S.W. 458

(1926); Rhoades v. Barnes, 54 Wash. 145, 102 P.

884 (1909).


122. Illinois Steel Co. v. Bilot, 160 Wis. 218, 151

N.W. 258 (1915).


s








123. At common law there was no fixed period of

perscription but the courts by analogy followed

the statute of limitations for adverse possession.

2 American Law of Property, supra note 47, at

S 8.52. The common law period is twenty years,

but in most states the prescriptive period is

determined by statute.


124. Alta Land & Water Co. v. Hancock, 85 Cal. 219,

24 P. 645 (1890); Harmon v. Carter, 59 S.W.

656 (Tenn. 1900).


125. Harnsberger, supra note 118, at 65.


126. Illinois Steel Co. v. Bilot, 109 Wis. 418,

446, 85 N.W. 402, 408 (1901).


127. 5 R. Powell, supra note 31, at para. 720.


128. Anaheim Water Co. v. Semi-Tropic Water Co., 64

Cal. 185, 30 P. 623 (1883); Preston v. Clark,

238 Mich. 632, 214 N.W. 226 (1927); Schulenberg

v. Zimmerman, 86 Minn. 70, 90 N.W. 156 (1902);

Hanks, supra note 33, at 630.

129. Smith v. McElderry, 220 Ala. 342, 124 Sl. 896

(1929); Tinker v. Bessel, 213 Mass. 74, 99 N.E.

946 (1912).


130. 56 Am. Jur., Waters S 337 (1947); 93 C.J.S.,

Waters 185 (1956); contra Burkman v. City of New

Lisbon, 246 Wisc. 547, 19 N.W.2d 311 (1945).

81









131. Harnsberger, supra note 118, at 78-79.


132. Burkman v. City of New Lisbon, 246 Wis. 547, 19

N.W.2d 311 (1945).


133. 20 So. 780 (Fla. 1896).


134. 46 So.2d 392 (Fla. 1950).


135. 46 So.2d at 394.


136. 102 So.2d 833 (2d DCA Fla. 1958).


137. See Chapter 2, infra.


138. Cooper & Stringfield, Ground Water in Florida,

Fla. Geol. Surv. Info. Cir. No. 3, at 1 (1950).


139. Figure 1 is taken from Florida Water Resources

Study Comm'n, Florida's Water Resources Report

to the Governor of Florida & 1957 Legislature 36

(1956) [herinafter cited as Florida's Water

Resources].


140. Figure 2 is taken from Hendry & Lavender, Final

Report on an Inventory of Flowing Artesian Wells

in Florida, Florida Geol. Surv. Cir. No. 21, at

10 (1959).


141. Figure 3 is taken from Hendry & Lavender, Final

Report on an Inventory of Flowing Artesian Wells

in Florida, Florida Geol. Surv. Cir. No. 21, at

11 (1959).









142. Figure 4 is taken from Hendry & Lavender, supra,

at 6.


143. See Ferguson, Linghas, Love & Vernon, Springs of

Florida 32-33, 124-25 (Fla. Geol. Surv. Geol.

Bull. No. 31, 1947).


144. Critchlow, Policies an1 Problems in Controlling

Ground Water Resources, 40 Am. Water Works Ass'n

J. 775 (1948).


145. Figure 5 is taken from Florida's Water Resources,

supra note 139, at 39.


146. Id. at 66.


147. Id. at 40.


148. See Hendry & Lavender, supra note 140, at 13.


149. Id. at 14, 17.


150. Figure 6 is taken from Florida's Water Resources,

supra note 139, at 47.


151. Id. at 47; Black, Brown & Pearce, Salt Water

Intrusion in Florida-1953 (1953).


152. Florida's Water Resources, supra note 139, at 47-

48.


153. Fla. Stat. SS 373.021-373.061 (1977). See also

Hendry & Lavender, supra note 140, at 18.









154. See discussion in Chapter 2.


155. Fla. Stat. S 373.194 (1977).


156. See discussion in Chapter 4.


157. Tampa Waterworks Co. v. Cline, 20 So. 780

(Fla. 1896).


158. Thomas, Conservation of Ground Water 248 (1951).


159. Frazier v. Brown, 12 Ohio St. 294, 311 (1861).


160. Tampa Waterworks Co. v. Cline, 20 So. 780 (Fla.

1896).


161. See Koch v. Wick, 87 So.2d 47 (Fla. 1956).


162. Tampa Waterworks v. Cline, 20 So. 780 (Fla.

1896).


163. Id. at 782


164. E.g. Tampa Waterworks Co. v. Cline, 20 So. 780

(Fla. 1896); Stoner v. Patten, 63 S.E. 897

(Ga. 1909); Clinchfield Coal Corp. v. Compton,

139 S.E. 308 (Va. 1927).


165. Tampa Waterworks Co. v. Cline, 20 So. 780

(Fla. 1896).


166. Maricopa County Municipal Water Conservation

Dist. v. Southwest Cotton Co., 39 Ariz. 65, 87,

4 P.2d 369, 377 (1931) (dictum); Hale v. McLea,
84




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