Title: Common Law Rights and Remedies
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Permanent Link: http://ufdc.ufl.edu/WL00000719/00001
 Material Information
Title: Common Law Rights and Remedies
Physical Description: Book
Language: English
Publisher: The Florida Bar
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Common Law Rights and Remedies, L. M. Buddy Blain
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 112
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000719
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

L. M. Buddy Blain, Tampa
I. Surface Water Rights Navigable
Waterbodies..........................~-t ."
II. Surface Water Rights Non-
Navigable Waterbodies............... ~S6.'Z
III. Surface Water Rights Diffused
Surface Water...................... (P< '
IV. Remedies for Interference with
Surface Water Rights............... .19 .
V. Groundwater Rights.................... (..


Water Law,
Water Rights
Water Policy:
The Florida Law of
Water, Wetlands
Submerged Lands
Copyright 1986
By The Florida Bar
The Florida Bar
Continuing Legal Education Committee
The Environmental and Land Use Law Secton



L. M. Buddy Blain

Tnis is a summary of common law
rights in surface water and groundwater
and remedies available to prevent,
mitigate, or terminate interference with
those rights. These rights and remedies
co-exist with statutory rights and
remedies, except where Chapter 373 of
the Florida Statutes provides an
exclusive remedy.

1. Surface Water Rights Navigable

A. Private rights in navigable
waterbodies, based on ownership of
adjoining lands, are called riparian
rights. These rights include:

1. Reasonable withdrawals
from the waterbody;

2. Exclusive access over
S riparian uplands to the waterbody;

3. Navigation (in common with
public and other riparians and their
invited guests);

4. Unobstructed view of the

5. Swimming;

6. Fishing;

7. Wharfing out;

8. Right to land deposited by
accretion or exposed by reliction.

Board of Trustees of the Internal
Improvement Trust Fund v. Medeira Beach
Norine, Inc. 272 So2d 209 (2d DCA
1973); Thiesen v. Gulf, F. & A. Ry. Co.,
78 So. 500 (1918), modifyinq 78 So. 491
(1917); Padgett v. Central and Southern
Florioa Flood Control District, 178 So2d
900 (2d DCA 1965).

B. Riparian rights arise as a
result of ownership of dry land that
includes some common boundary with a
navigable body of water; the dry land is
called "uplands".

C. The boundary between uplands
and the fresh, non-tidal, navigable
water body historically has been the
ordinary high water line; it is the mean
high tide line for salt water or tidal
navigable waters.

1. This line cannot be frozen
in time. Freezing the OHWL, for
example, would eliminate the upland
owner's common law rights to title to
land formed as a result of accretion
(gradual and imperceptible deposit of
sand) or exposed as a result of
reliction (gradual and imperceptible
recession of water). These common law
rights preserve the upland owner's

status as a riparian owner and preserve
his access to the water body. The
boundary also changes if the water
erodes the upland property, thereby
extending the State's title landward.

2. If the migratory nature of
the OHWL were terminated, then the
boundary between sovereignty submerged
lands and privately owned uplands could
very well be under water and incapable
of identification. The ownership
boundary line must be migratory by
necessity of the migratory nature of the
physical boundary line.

3. On April 16, 1985, the
Governor and Cabinet established an
Ordinary High Water Committee in
response to a request by the Executive
Director of the Department of Natural
Resources. The purpose is to discuss
possible alternatives to the ordinary
high water line as a boundary, as well
as controversies caused by the present
methods of establishing the boundary.

4. Establishing the current
ordinary high water line has become a
confusing problem. Guidelines are
needed, guidelines based on long
standing legal principles with special
attention to the migratory nature of the
OHW line and the sensitivity of this to
Florida terrain.

D. Riparian ownership normally
carries with it the right to exercise
riparian rights fishing, boating,
swimming, etc. on the entire waterbody
and not just that portion abutting the
riparian owner's property.

E. A riparian owner has the
common law right to drain surface water
from his lands into a natural waterbody,
or drain water from the waterbody, so
long as he does not divert the natural
flow of the water, or raise or lower the
level of the waterbody to the injury of
other uplands owners. Stoer v. Ocala
Mfg., Ice Packing Co., 24 So2d 579
(Fla. 1946).

F. Riparian rights may pass with
conveyance of a leasehold interest. For
example, a riparian owner can lease
uplands property, and the lessee may
conduct a water skiing school on the
waterbody, subject to reasonable rights
of other riparian owners. Florio v.
State ex rel. Epperson, 119 So2d 305 (2d
DCA 1960).

G. Riparian rights cannot be
separated from uplands without the
uplands owner's consent or without
payment for the same. Belevedere
Development v. Dept. of Transportation,
476 So2d 649 (Fla. 1985). (DOT
condemned fee title to uplands,
reserving to condemnees all riparian
rights. The court held that DOT must
compensate condemnees for riparian
rights as these cannot be severed from
uplands without consent of the uplands


H. The public has the right to
use navigable waters for swimming,
fishing and boating. These rights are
protected under the Public Trust
Doctrine. See, for example, Holland v.
Pierce Financing and Construction Co.,
157 Fla. 649, 27 So2d 76 (1946); Ellis
v. Gerbinq, 56 Fla. 603, 47 So. 3=3
(1908). These rights have been greatly
analyzed and discussed lately in the
context of proposed amendments to the
Marketable Record Title Act.

1. Although the public has
the right to use navigable waters, the
public does not have a right of access
across riparian uplands to navigable
water bodies. If all the surrounding
uplands are privately owned and no
private owner grants an easement, the
public does not have any means of
getting to the waters to exercise its
rights of navigability, fishing, and
swimming. This is because the shore
(ordinary high water line) is the
landward boundary of publicly owned

II. Surface Water Rights -
Non-navigable Waterbodies

A. Owners of uplands that abut
artificial, non-navigable water bodies
do not have riparian rights, where the
uplands owners do not own any portion of
the bottom lands. Publix Super Markets,
Inc. v. Pearson, 315 So2d 8 (2d CA
1975), cert. denied, 330 So2d 20 (1976).
B. Rights in non-navigable lakes
arise out of ownership of the bottom
land. Ownership of a portion of the
bottomland of an artificial Take
entitles the owner to use of the waters
overlying that portion; there is no
right to use the waters lying above the
portion owned by someone else. Anderson
v. Bell, 433 So2d 1202 (Fla. 1983).

C. There is a presumption that
ownership of the bed of a non-navigable
waterbody goes with the adjacent upland.
For a stream, ownership usually goes to
the middle thread of the current.

D. Ownership of all the uplands
surrounding a natural or artificial non-
navigaole water body carries with it
exclusive use of the water body. There
arc no other owners of bottom land, and
trn public has no common law rights.

1. This is very topical in
view of the current Marketable Record
Title Act controversy. There probably
are other instances of single ownership
of a waterbody but probably none so
famous as the Ed Ball case. It is an
example of common law rights in water
that have been forgotten about in
today's emphasis on public use of

a. In 1933, Edward Ball
bought all the uplands bordering on the
Wakulla Springs in Wakulla County. He
also purchased uplands on a portion of
the Wakulla River which flows from the

Springs into the St. Marks River and
then into Apalachee Bay, an arm of the
Gulf of Mexico. Mr. Ball established a
wildlife sanctuary on his land around
Wakulla Springs and built a lodge. The
lodge and wildlife sanctuary were
operated by the Edward Ball Wildlife
Foundation and the Wakulla Silver
Springs Company. Mr. Ball cleared
vegetation and dredged part of the River
to allow passage of glass bottom boats.
After an alligator who was a resident of
the Springs was found killed, presumably
by an unauthorized intruder, Mr. Ball
closed off the Springs and the Wakulla
River headwaters with a fence. The
Florida Wildlife Commission approved the
plan. For thirty years, beginning with
Governor Spessard Holland (1941-1945)
every governor approved the idea and
wrote letters approving the establish-
ment of the wildlife park and the clos-
ing off of the headwaters.

b. An individual named
Thomas A. Morrill sued Mr. Ball, the
wildlife foundation and the Wakulla
Silver Springs Company, under Florida's
Environmental Protection Act of 1971,
Section 403.412, Florida Statutues. The
Act authorizes private suits to protect
the air, water, and other natural
resources of the State. Mr. Morrill
claimed that the Springs and River were
navigable waters and thus, resources of
the State protected under the Act. He
claimed that the dredging and fencing
impaired the State's natural resources.

c. The Circuit Court of
Wakulla County determined that non-
navigable waters on private property
belong to the landowner who can do what
he wants so long as he does not
interfere with downstream waters or
public waters. The Court ruled that the
Springs were not navigable because of
their small area, and the fenced portion
of the River was not navigable because
it was suitable only for transportation
of canoes and very small craft as
evidenced by the dredging needed to
allow passage of glass-bottom boats.
The non-navigable waters were not
resources of the State under the
Environmental Protection Act. Mr. Ball
had title to the bottom of the River and
Springs, and his fence could remain.
Thomas A. Morrill v. Edward Ball, Case
No. 401, Final Judgment (Circuit Court
of the Second Judicial Circuit, Wakulla
County, June 29, 1973).

d. The circuit court's
decision affirming Mr. Ball's ownership
of the non-navigable Springs and portion
of the River was upheld by the First
District Court of Appeals. State Board
of Trustees of the Internal Improvement
Trust Fund V. Ball, 300 So2d 741 (lst
DCA 1974).

E. The owner of bottomlands of a
non-navigable waterbody may deed or
otherwise convey rights of use over his
portion to other parties owning another
portion of the bottomlands, thereby

entitling each owner of a portion of the
botton.lands to use the entire waterbody.
In turn, that grantee may lease his
rights of use pertaining to his
S bottomlands ownership, along with the
right to use of the entire waterbody, to
a tenant or tenants, so long as such use
is reasonable. Silver Blue Lake
Apartments v. Silver blue Lake Home
Owrneis Association, 245 So2d 609 (Fla.

III. Surface Water Rights Diffused
Surface Water

A. Each and every owner of land,
even non-riparian land, has certain
rights regarding diffused surface water.
This is water that flows without any
defined channel. It may be simply
stormwater. The common law rule is that
an owner of higher lands has a servitude
on lower lands to discharge naturally
occurring surface water. This servitude
extends only to natural flow and cannot
be increased by man.

B. The upper owner also cannot
divert the flow of naturally occurring
surface water. New Homes of Pensacola,
Inc. v. Mayne, 169 So2d 345 (1st DCA
1964); Seminole County v. Mertz, 415
So2d 1286 (5th DCA 1982).

IV. Remedies for Interference with
Surface Water Rights

A. Common law remedies for
interference with common law surface
water rights include actions for
injunctions on the baiis of nuisance or
trespass; actions for damages for
trespJus; or, in the appropriate case,
actions for inverse condemnation.

B. A riparian owner's remedy for
interference with his exclusive right of
access would be an action in trespass.
A riparian owner could bring an action
for injunction if his right to an
unobstructed view of the water is

C. An owner of bottom land whose
exclusive right to use all or part of
the overlying water is violated could
also allege trespass and request an
injunction. The bottom land owner may
file an action to quiet title if
necessary or an action for damages for
conversion of any valuable products
taken from the soil or water.

D. Interference with surface
water flow may be a nuisance (one
landowner's use of his property
interferes with other landowner's use
and enjoyment of his property). Intent,
degree of care, or negligence is not an
essential element of an action for
nuisance. A nuisance usually is a
continuing act or situation.
Injunction, or damages in the
appropriate case, may be sought as a
remedy for pollution of a waterbody;
excessive withdrawals from or additions
to a waterbody; diversion of a
waterbody; or increases in or diversion

of natural diffuse surface water.
Brumley v. Dorner, 83 So. 912 (Fla.
1919); Edason v. Denison, 194 So. 342
(Fla. 1940); Stoer v. Ocala Mfg. Ice H
Packing Co., 24 So2d 579 (Fla. 1946);
New Homes of Pensacola, Inc. v. Mayne,
169 So2d 345 (1st DCA 1964); Seminole
County v. Hertz, 415 So2d 1286 (5th DCA

1. Note, however, that
injunctions require that the defendant
stop the activity that causes the
nuisance, or that the defendant take
positive steps to correct the nuisance.
As a matter of practicality, this means
that an injunction will afford little or
no relief when the person or entity that
is primarily responsible for changing or
increasing the surface water flow such
as a property developer has long since
departed with all title and interest in,
or responsibility for, the land or the
offending condition.

E. An unnatural increase in
surface water flow may be a trespass
(use of another's land without
permission). A true trespass involves a
forcible or direct unauthorized entry
onto another's land, with intent or
negligence. A trespass usually is a
single act or acts, although there may
bd a continuing trespass.

F. The statute of limitations for
nuisance and trespass is four years.
This may be impractical where the
impacts of_additions.to surface water
flow are not apparent for years; the
degree to which the impact is felt can
be influenced by the overall wetness or
dryness of the intervening years. In
the meantime, the person or entity
responsible may depart, selling the

1. There is legal support for
the argument that, when a tort involves
a continuing injury, the cause of action
accrues and the statute of limitations
begins to run when the tortious conduct

2. If the damage to the land
is permanent (for example, the land now
serves as a regional retention basin),
the statute of limitations does not
begin to run until the damage is
apparent and it becomes obvious that the
damage is of a permanent character.

G. An action for inverse
condemnation may be an appropriate
remedy when the state or some other body
with eminent domain powers:

1. Fills in natural drainage
areas, thereby causing flooding;

2. Obstructs natural flow of
channelized diffused surface water,
causing flooding;

3. Changes natural drainage
patterns by, for example, constructing a

4. Raises lake levels by
raisii.g the grade of a road or by
constructing dams; or

5. Negligently constructs a
drainage system, causing flooding.

H. Generally, inverse
condemraation is appropriate only when
there is a permanent invasion of the
property (this requirement may be
fulfilled by the fact that the property
floods whenever it rains), rendering the
property useless. See Arundel
Corporation v. Grifin, 103 So 422 (Fla.
1925; State Road Department v. Tharp, 1
So2d 868 (Fla. 1941); Poe v. State Road
Department, 127 So2d 898 (1st DCA 1961);
Dudley v. Orange County 137 So2d 859
(2d DCA), app. dismr. 146 So2d 379 (Fla.
1962), cert. denied, 372 US 959 (1963);
Kenory v. State Road Department, 213
So2d 23 (4th DCA 1968). cert. denied,
222 So2d 752 (Fla. 1969); Elliott v.
Hernando County, 281 So2d 395 (2d DCA
.1973); Thompson v. Nassau County, 343
So2d 965 (1st DCA 1977); D.O.T. v.
Burnette, 364 So2d 916 (1st DCA 1980);
Leon County v. Smith, 397 So2d 362 (1st
S DCA 1981); Hilsborough County v.
Gutierrez, 433 So2d 1337 (2d DCA 1983).

1. If the required elements are
not present for inverse condemnation,
injunction may nevertheless be

J. The Attorney General or local
state attorney, or likely any citizen,
should be able to enforce the public's
rights of use of natural navigable

V. Groundwater Rights

A. The quality and quantity of
Florida's groundwater is a major concern
among policy makers, legislators, water
management districts, counties, cities,
DER, and private citizens. Most of this
concern has been expressed through
increasing regulation of water and land

B. The common law also protects
groundwater quality and quantity.

C. There are many similarities
between the common law rights associated
with surface water, and those associated
with groundwater.

D. Both surface water rights and
groundwater rights are usufructory -
rights to use rather than to own or
possess. Because of water's inherent
migratory nature, neither surface water
nor groundwater is amenable to

E. In the case of a privately
owned lake, you might say that the water
itself can be possessed or owned.
However, in a non-navigable or navigable
waterbody not owned entirely by one
person, each "owner" can only use the
water to the extent his use does not
harm other owners.

F. Even in the case of the
privately owned lake, the only reason
you might say that the water itself is
possessed or owned is because the water
has been captured. Similarly,
groundwater may be the subject of
ownership once it is reduced to
possession. A land owner can own, and
convey, water he has captured; but a
landowner cannot own or convey free
flowing groundwater. See Village of
Tequesta v. Jupiter InTet Corp., 371
So2d 663 (Fla. 1979), cert. denied 100
S.Ct. 453 (1979). The United States
Supreme Court has held that groundwater,
upon its capture, is an item of commerce
that is protected under the Commerce
Clause of the U.S. Constitution.
porhase v. Nebraska ex rel. Douglas,
102 S.Ct. 3456 (1982). Sporhe
involved Nebraska law, whih, like
Florida common law and statutory law,
applies a reasonable use rule to
groundwater withdrawal; an overlying
owner may use groundwater so long as it
does not unreasonably interfere with the
equal rights of neighboring landowners.)

G. Like surface water rights,
groundwater rights have their source in
land ownership. This is an unpopular
view in the current climate which says
groundwater is a public resource that
has nothing to do with ownership of the
overlying land. The Public Trust
Doctrine, however, does not apply to

1. An overlying landowner at
common law had the right to make
reasonable withdrawals of gounawater,
subject to equal rights of neighboring
land owners. Cason v. Florida Power
Co., 76 So 535 (Fla. 1917); Koch v.
Wick, 87 So2d 47 (Fla. 1956);
Labruzzo v. Atlantic Dredging &
Construction Co., 54 So2d 673 (Fla.

2. There are no reported
Florida cases directly addressing the
validity of a conveyance of whatever
common law rights the overlying
landowner may have to withdraw and use
groundwater. In this regard, looking
only at the common law, there is no
distinction between surface water rights
and groundwater rights; if the landowner
wishes, he can convey those rights
separate from land ownership (see
discussions at I. F. and G., and II.

H. Under the common law in
Florida, the relationship of overlying
landowners is similar to the
relationship among riparian owners.

1. Each owner has the right
to use groundwater for beneficial
purposes that have a reasonable
relationship to the use of the overlying

2. Unreasonable use of the
overlying land may affect a neighboring
land owner's groundwater rights. For


example, negligent excavation or pouring
of concrete may affect groundwater
flows, as in the flow of a spring.
Labruzzo v. Atlantic Dredging & Constr.
Co., 73 So2d 228 (Fla. 1954)

1. There was a common law right
to unadulterated groundwater:

To suffer filthy water," says
Foster, J., in Ball v. Nye,
"to percolate or filter
through the soil into the land
of a contiguous proprietor, to
the injury of his well and
cellar, where it is done
habitually and within the
knowledge of the party who
maintains the vault, whether
it passes above ground or
below, is of itself an
actionable tort. Under such
circumstances the reasonable
precaution which the law
requires is, effectually to
exclude the filth from the
neighbor's land; and not to do
so is of itself negligence.

99 Mass. 582, 584; quoted in
J. Gould, A Treatise on the
Law of Waters (3d Ed. 1900).

J. Interference with groundwater
rights may be remedied by injunction or

E. During the past three to four
years, Pinellos County has attempted to
eirloy its common law remedies to
injunction and damages for trespass, for
alleged groundwater quality violations
(and surface water drainage

1. Pinellas County owns and
operates the Eldridge-Wilde Wellfield
near the Hillsborough County line, on
property owned by the Wildes and leased
to the CoJnty. Pinellas County claims
that operation of two borrow pits, one
bordering the Wellfield and the other
one-half to three-forths of a mile away
from the Wellfield, have (or will have)
the effect of dewatering the wells that
produce public supply water. Pinellas
County also alleged that the borrow pits
had changed the flow of surface water
and the natural drainage pattern, and
were contar.inating the aquifer.

2. There have been
stipulations and orders aplenty, all
aimed at cleaning up both land fill
sites and prohibiting reoccurrences.
Tnere have been preliminary, temporary,
mandatory, and emergency injunctions.
There have been findings of contempt.

3. In response, the landfill
owners argue that Pinellas County has
not suffered any real injury to its
water yet. There has been no evidence
that any contaminated water has been
pumped from the wells at Eldridge-Wilde.

4. The landfill owners also
claim inverse condemnation, that

Pinellas County effectively has taken
their livelihood and their property,
without compensation. They claim that
the Wellfield itself is a nuisance,
causing harm to the environment.

5. The case is still pending
in Circuit Court in Pinellas County
(Pinellas County v. James F. Martin,
Patricia Martin, W. H. Martin, and C.H.
Martin, Case No. 82-13019-17) and there
have been several trips to the Second
District Court of Appeal (Cases No. 85-
29, 85-663). See, Martin v. Pinellas
County, 444 So-439 (2d DCA 1983).
This case provides many examples of the
common law rights and remedies that co-
exist with Florida's statutory scheme of
water regulation.


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