Title: Excerpts from Florida Water Law 1980
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Permanent Link: http://ufdc.ufl.edu/WL00001744/00001
 Material Information
Title: Excerpts from Florida Water Law 1980
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Excerpts from Florida Water Law 1980
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 80 81 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001744
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

may not have their flows altered by more than 1Q% at the
time and point of withdrawal (except for dams). Lakes and
impoundments may not have their levels lowered more than

-N one foot, and the water table may not be lowered by more

S than three feet where the land is not owned, leased or
otherwise controlled by the applicant. The governing

board may grant exceptions where all data, including eco-

nomic data, shows the activity to be consistent with the

public interest.385 Conditions may be placed on any


(c). St. Johns River Water Management District

The SJRWMD only regulates surface water works in the

areas transferred to it by the SFWMD in January of 1977.387

These areas are regulated in substantial conformity to the

rules and regulations discussed above in regard to the

C. The Vested Rights Problem

If common-law allocation rules have created "vested

rights" on behalf of property owners, the abrogation of

these rules by legislation such as the Florida Water Re-
sources Act may cause constitutional problems. Although

a number of eastern states have modified the common-law

system of water rights, so far there have been no direct
challenges to the constitutionality of these statutory
permit systems. However, with the exception of
Florida and Iowa, these regulatory schemes are not very
comprehensive or restrictive. Thus, the remarkable

i. -, ---A


absence of litigation on this issue does not mean that

constitutional challenges may not be brought in the


1. The Taking Issue

The solution to the vested rights problem requires an

inquiry into the nature of the rate's police power upon

which water rights legislation, like other regulations,

is ultimately based. The state may regulate private prop-

erty through the exercise of its police power, but these

restrictions must bear a rational relation to the safety,

health, morals or general welfare of the community. In

addition, the exercise of the police power must be reason-
able and not arbitrary or oppressive. Otherwise, the

regulation is regarded as a taking of property without

due process of law. American courts generally follow one

Sof two approaches: the "dimunition in value" test and
* the "residual beneficial use" test391 To a large extent,

the difference between the two approaches is a matter of

judicial perception; one court might view the glass as

;. being half-empty, another, half-full. Under the

"dimunition in value" approach, the court looks to the

potential value of property and measures the loss in-

curred as a result of regulation. Adoption of this

approach usually indicates a restrictive judicial atti-

tude toward land use control and will often result in a

determination that a taking has occurred. When the

dimunition in value "reaches a certain magnitude, in most


if not all cases there must be an exercise of eminent domain

and compensation to sustain the act."393 No clear standard

exists, however, for determining how great the dimunition

must be. Indeed, courts adopting the dimunition test have

upheld regulations resulting in extensive losses without

requiring public compensation.394

Other jurisdictions, including Florida, emphasize the

beneficial uses remaining to a landowner under a given

regulation. If some beneficial use to which the property

may be reasonably adapted exists, these courts normally

will reject a taking claim.395 In recent years, the

"residual beneficial use" approach has tended to expand

considerably the permissible scope of land use regulation.

This tendency is especially pronounced if disputed regula-

tions have been imposed for purposes of flood control and
environmental protection. Indeed, a number of flood

plain zoning cases have allowed complete prohibition of

development without requiring the state to compensate the

affected landowner. Emphasizing the magnitude of public

harm prevented by these restrictions, courts have regarded

beneficial uses such as agriculture or recreation suffici-

cient to avoid a compensable taking.397

Another approach is the "public rights" test which

combines an expanded notion of public rights with a pre-

sumption that the needs of the public out weigh any burden

imposed on an individual landowner.398 The leading case
is Just V. Marinette County, which upheld restrictions


I I ~- ... .~ ._... .~,. ~

on dredge and fill operations in wetland areas contiguous

to navigable waters. The court distinguished between re-

strictions designed to prevent harm to the public and those

intended to secure a benefit not presently enjoyed by the

public: Compensation would not be required in the former

instance, though it might be in the latter. In Just, the

court concluded that the wetlands protection regulations

merely prevented a harm and, therefore, did not constitute

a taking of property even though the value of the plaintiff's

land for development purposes was substantially reduced.

2. The Taking Issue in Florida

The prohibition against an uncompensated taking by the

state arises not only from the fifth amendment, but in

Florida, from Article X, Section 6(a) of the 1968 Con-

stitution as well.400 The older Florida cases employed an

invasion theory and required "a trespass upon or a physical

invasion of the abutting property" to constitute a taking.401

More recent Florida cases emphasize the beneficial uses
remaining to a landowner under a given regulation. The

test for determining how much value must be lost to the

landowner before police power limits are exceeded has been

stated as follows in Forde v. City of Miami Beach:

Property owners must show that the appli-
cation of the zoning ordinance has the
effect of completely depriving them of
the beneficial use of their property by
precluding all uses or the only use to
which it is reasonably adapted, or that
the ordinance has invaded their personal
or property right unnecessarily or un-
reasonably in violation of the Federal
or Florida Constitution.403

~YYLl~~i~ .. I..rl ;ix;i~io L~r~ii;x~i-;j: .i..;.....~ ~C~

In that case, the court determined that the subject prop-

erty was unfit for the purpose to which it was restricted

(single family dwellings), and that to continue the re-

striction would be to exceed the police power limitation

and result in a taking without compensation.404

In Moviematic Industries Corporation v. Board of

County Commissioners of Metropolitan Dade County,405 the

plaintiff corporation argued that a county resolution which

rezoned an area over the Biscayne Bay Aquifer from heavy

industry to single family had no reasonable relation to

health, safety, or welfare, and was thus an unreasonable

restriction of its beneficial use and amounted to a taking.

Both the trial court and the Third District Court of Appeals

rejected that argument in finding that preservation of an

adequate drinking water supply and ecological system are

clearly within public health objectives and, in fact, long

overdue. The court declared that the public interest must

prevail when it becomes necessary to balance private and

public interests.406 Because alternate development was

available and plaintiff had not tried to develop the area

prior to the rezoning, the court could find no taking.407

Another recent Florida decision, Askew v. Gables-by-
the-Sea, arose from a resolution by the Board of Trust-

ees of the Internal Improvement Trust Fund prohibiting

dredging pursuant to a preexisting permit unless dredging

operations had already begun. One developer, Gables-by-


r~`""~; "~- -" '"'-~~~*"'`~~PIL i----li-i, u_~.iri^i-)l- Ir- i~

the-Sea, had 220 days remaining on its permit, but was

denied permission to dredge because operations were not

begun prior to the adoption of the resolution. In find-

ing for the developer, the Court held that the corporation

had been denied the right to use its bottomland in the

only way it could be of any val'", and ordered the State

to pay the corporation for the right to prohibit dredge
and fill activities. The First District Court's find-

ing that a taking had occurred under these facts is not a

move away from recognition of the State's great interest

in sovereignty lands below navigable waters. Rather, the

holding was a reasonable one because of the injustice that

would have resulted if the developer had been denied the

right to develop the submerged lands he had recently pur-

chased from the State.

Another recent holding is Estuary Properties, Inc. v.

Askew.410 In that case, the property owner sought zoning

to develop approximately 6,500 acres in Lee County. The

proposed development would have destroyed about 1,800

acres of black mangroves. The developer concurrently

filled an application with the Southwest Florida Regional

Planning Council and Lee County for developmental approval.

The Council expressed concern about destruction of the

black mangroves, and recommended that the application be

denied. After a series of public hearings, Lee County

denied both the proposed rezoning request and the applica-

tion for development approval.411


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The property ?n er appealed the developme order to

the Land and Water Adjudicatory Commission which is com-

prised of the Governor and Cabinet. The case was assigned

to a hearing officer who conducted a de novo review. The

hearing officer concluded that the proposed development

would have an adverse impact on the ecology and economy

of the area and recommended denial of the appeal. The

Land and Water Adjudicatory Commission agreed. On appeal,

however, the district court held that the restriction of

development rights upon alleged environmentally sensitive

land constituted a "taking" of real property without just

compensation in violation of the Florida Constitution.

According to the court:

This principle is universally accepted in
more traditional contexts of governmental taking
and is, in fact, the essence of constitutional
property rights. The true constitutional issue
in this case is whether there has been a taking
of Petitioner's property rights, not whether
the public benefits of preserving mangrove wet-
lands outweigh the private injury to Petitioner.
The Ajudicatory Commission has failed to indicate
any meaningful changes in the proposed development
that would enable Petitioner to make an eco-
nomically beneficial use of its land and, in fact,
observed that" once the hearing officer
decided against the construction of the inter-
ceptor waterway and the mangroves, there were no
changes possible within the record,,to make the
development eligible for approval. 412

Thus, the landowner was entitled to proceed with his proposed

development unless the government was prepared to compensate

him for the taking of his property.

3. Cases from the Western States

Although there are no cases from eastern jurisdic-

tions on the constitutionality of restricting the exercise


of common-law water rights, decisions from the western

states provide some guidance. Most of these cases, which

involve the validity of replacing riparian rights with

prior appropriation, arose in states where riparian rights

had been recognized before the prior appropriation system

was adopted. In addition, some of t.,e most recent cases

involve the replacement of common-law ground water doc-

trines with statutory permit systems based on prior

appropriation principles.

Lux v. Haggin, a California decision, was one of

the first cases to consider the status of riparian rights

in a prior appropriation jurisdiction. In the Lux case

the court held that the riparian doctrine had become part

of California law as a result of the state's adoption of

the common-law when it was admitted to the Union and de-

clared that the riparian owner was entitled to the full

natural flow of the watercourse. The court also declared

that this right attached to the land and was not created

by use nor lost by nonuse. Finally, the court held that

the legislature could not authorize appropriations which

interferred with these rights unless the riparian owners

were compensated.414

P Nevertheless, many western states have abrogated un-

exercised common-law water rights without compensation.

For example, Kansas did so in 1945 when it enacted a com-

prehensive prior appropriation statute. Litigation arose

over this statute when the state's chief engineer granted


qk~ ~.


a permit which allowed an irrigation district to divert

water for use on nonriparian land in such a manner as to

diminish substantially the flow available to downstream

riparians. The riparian owners argued that the Act was

unconstitutional interference with vested property rights.

However, the Kansas Court upheld the statute in State ex
rel. Emery v. Knapp, concluding that the legislature

had the power to modify or reject the doctrine of riparian

rights if it was unsuited to conditions in the state and

adopt the doctrine of prior appropriation. Moreover,

it hold that a landowner had no vested right in underground

waters underlying his land which he has not appropriated
and applied to beneficial use.416

Litigation also arose in the West when a number of

states abolished the traditional ground water doctrines in

favor of a statutory allocation system based on prior


For example, South Dakota's statute was challenged in

Knight v. Grimes. The plaintiff had only irrigated a

small part of land with ground water prior to the effective

date of the statute. When he sought to increase his water

use he was required to obtain a permit to appropriate addi-

tional water. Under the permit his right to the additional

water would have been subordinate to existing users. The

plaintiff instead brought suit, contending that he had a

vested right to the underlying ground water. The court up-

held the appropriation statute, observing that since common


law water rights were not property in the constitutional

sense, water use doctrines could be modified or rejected

entirely without constituting a taking of property. In

addition, the court declared that even if water rights

were regarded as vested property interests, they were

still subject to regulation under the police power if re-

quired by the general welfare.418

A similar controversy occurred in North Dakota where

a 1955 Act made ground water available for appropriation.

In Vokmann v. City of Crosby,419 the court declared that

presently exercised uses of precolating ground water were

vested in the overlying landowner and held that the plain-

tiff's vested water rights were superior to those of one

who made a subsequent appropriation under the 1955 Act.

Nevertheless, the same court in Baeth v. Hoisvenn420 held

that unused rights to ground water were not protected from

appropriation pursuant to the Act, and that the state in

r. the exercise of its police power make unused ground water

available to appropriators without impairing the property

rights of surface owners.

The taking issue also arose in Idaho in Baker v. Ore-

Ida Foods, Inc., where a senior appropriator sued to

prevent a junior appropriator from withdrawing ground water

in excess of the annual recharge rate. Idaho's ground

water appropriation statute prohibited such "mining" of

the resource. In response, the junior appropriator argued

that the court should apply the common law correlative


rights rule, under which each overlying landowner is en-

titled to a pro-rata share. The court, however, rejected

this argument even though it conceded that the correlative

rights doctrine might have applied at one time in Idaho.

In the court's words "[t]he doctrine of correlative rights

is repugnant to our constitutionally mandated prior ap-

propriation doctrine."422 In effect, the court held that

any allocation rights a landowner formerly possessed under

the correlative rights doctrine had been validly abrogated

by passage of the appropriation statute.

These and other western cases support the following

principles: First, conservation of the state's water
resources is an appropriate area of legislative concern.

Second, common law doctrines of judicial origin are not in-

flexible, but may be modified within limits, as warranted

by changing economic and social conditions. This applies to

both surface water424 and ground water 425 doctrines.

Third, in the interests of promoting the efficient use of

the state's water resources, the legislature may extinguish

riparian rights which are not being exercised.426 Unused

common law rights to ground water can likewise be terminated

without compensation.427 Fourth, although common law

rights may be terminated, presently exercised water uses

are "vested rights" which cannot be completely destroyed

by the legislature without compensation.428



4. Vested Rights and the Florida Water Resources Act

Although the constitutionality of the Florida Water

Resources Act has not been directly challenged, the Florida

Supreme Court's recent decision in Village of Tequesta v.

Jupiter Inlet Corporation429 indicates that the state can

extinguish unexercised common-la'. water rights without

compensation. The case arose when the Jupiter Inlet Cor-

poration brought an inverse condemnation action against

the City of Tequesta for depriving it of the beneficial

use of its property rights in the shallow-water aquifer

beneath its land. The city, under the terms of a permit

issued by the South Florida Water Management District, was

pumping more than a million gallons a day from the aquifer

to supply its residents with water. Jupiter, which owned

property near one of Tequesta's well fields, planned to

build a condominium project on its land. However, Jupiter

was not allowed to withdraw water from the aquifer because

Tequesta's withdrawals had created a salt-water intrusion

problem. Instead, the only means by which Jupiter could

supply water to its property was to drill a well to the

Floridan aquifer, located 1200 below the surface, at a

substantially greater cost. The trial court held in

favor of Tequesta, but the immediate appellate court re-

versed and certified the question to the Florida Supreme


According to the Court, Florida recognized the rea-

sonable use rule with respect to percolating ground water,


-YI--I:;n~*~)LIIIII~-~.. _, i I X 1XI i.-^- "" ~'~ '.'.' "~

but had never considered the meaning of "ownership" as

applied to such waters. However, the Court agreed with

the rule in other jurisdictions that the right of the

owner to ground water underlying his land was a usufructory

one and did not include a proprietary interest in the corpus
of the water itself.431

Moreover, Jupiter had not acquired any rights under

the Florida Water Resources Act. This conclusion rested

on the Statute's distinction between exercised and un-

exercised common-law water rights. Landowners who were

withdrawing water on the effective date of the Act were

required to convert their common-law water rights into

permit water rights in accordance with the procedures of

section 373-226(3). Otherwise the right was abandoned

and extinguished, requiring a new application for a per-

mit. On the other hand, as the Court observed, "The

Florida Water Resources Act makes no provision for the con-

tinuation of an unexercised common-law right to use water."

In the Court's words, "Jupiter had perfected no legal

interest to the use of the water beneath its land which
.432 Not
would support an action in inverse condemnation.
only had Jupiter lost its unperfected rights under the

common-law allocation rules, it could no longer acquire any

right to withdraw water except by obtaining a permit from

the Water Management District.

Tequesta was not required to compensate the plaintiff

since its activities did not constitute a physical invasion


-L~ra~~ ..,. I

of Jupiter's property nor Hid they destroy the plaintiff's

right to the use of his land. The additional costs Jupiter

incurred because it was forced to drill a deep well were

characterized as "consequential" and, therefore,


To the extent that it uphol's the right of the state

to abrogate unexercised common-law water rights the

Teguesta case is consistent with the decisions, discussed

earlier, from western jurisdictions. A more difficult

question is whether the state can limit the rights of per-

mit holders who were withdrawing water at the time the

Florida Water Resources Act became law. Although the

Court in Tequesta did not address itself to this issue

specifically, it did suggest that some regulation of water

users was permissible:433

Legislation limiting the right to the use of
the water is in itself no more objectionable
than legislation forbidding the use of prop-
erty for certain purposes by zoning

In addition, the Court acknowledged that the state

could substitute one form of water rights form another when

it characterized the procedure under section 373.226(3) as

a "transitional procedure." In effect, that is what hap-

pened in many western states when they replaced their

common law ground water rules with a prior appropriation

system. Existing ground water uses were quantified and

converted into appropriative rights.


--II~b" J --~ b '"-liiiI r~ ;""" '-'

--~---- --bn ~-- ----

However, while common law rights were exchanged for

permanent appropriative rights in the West, the owner of

such rights in Florida merely obtains a permit right of

limited duration. Arguably, the loss that he has suf-

fered on the transaction may represent a taking of prop-

erty without due process.

If an existing water use was terminated by denial or

nonrenewal of a water use permit, the validity of the agency's

action in that particular case would probably depend on the

court's choice of a taking test. Even under the public

rights test of Just v. Marinette County, discussed earlier,

presently exercised water rights would probably be entitled

to protection. If the court applied the more conventional

diminution-in-value test, it would have to determine the

extent of actual harm that a landowner suffers when common

law water rights are restricted or completely abrogated.

Since common-law water rights in Florida are not transfer-

able, the value of a water right must be measured primarily

in relation to a particular tract of land. Thus, if a

water right was completely destroyed, we would look at the

diminution-in-value not of the water right itself, but the

land to which it is appurtenant. For example, in an area

where irrigation is necessary, loss of a common law water

right might virtually destroy the value of a farm. If
the farm was not suitable for some other productive use,

the diminution in value as a result of the regulation would


^n .L Ull -

probably be sufficient to constitute a taking. In cases
where the regulatory agency forced a permit holder to obtain
his water from a more distant source of supply, the courts
might also treat the capitalized cost of obtaining water
from this new source as a diminution-in-value. No doubt in
some instances this sum would be large enough to require



t 8

II I I / I Il ll -. .. .... ..". .

-, ..:- ". t- r-' ,

365. Id., at" 0-11.

366. Id., at 9.

367. 6 Fla. Admin. Code 16K-4.021(2).

368. Fla. Stat. S 373.413(1) (1979).


370. Fla. Stat. S 373.413(1) (1979).

371. 6 Fla. Admin. Code 16K-4.022.

372. 6 Fla. Admin. Code 16K-4.022(b)(3).

373. Permit Information Manual, supra note 360, n.20 at 29.

374. 6 Fla. Admin. Code 16J, at 29.

375. Id.

376. Id., at 6.

377. Permit Information Manual, supra note 360, Appendix 1-3.

378. Compare Fla. Admin. Code 16-J with Fla. Stat. ch. 373,

Part IV (1979).


r~ .;i. ...._~.........j 1Li --i~-L*Uyi I y

379. Interview with Mr. Dale Hardin, permitting staff, South-

west Florida Water Management District (Sept. 7, 1979).

380. 6 Fla. Admin. Code 16J-4.04.

381. Id.

382. Id.

383. 6 Fla. Admin. Code 16J-4.06.

384. Id.

385. Id.

386. Id.

387. 6 Fla. Admin. Code 161-4.

388. Id.

389. See generally Ausness, Water Use Permits in a Riparian

State: Problems and Proposals, 66 Ky. L.J. 191, 240-252

(1977). An oblique challenge to Wisconsin's permit

system, however, was made in Omernick v. State, 218

N.W. 2d 734 (Wis. 1974) and Omernick v. Department of

Natural Resources, 238 N.W. 2d 114 (Wis. 1976).




Y$ ~"~s~~

390. See generally Berger, A Policy Analysis of the Taking

Problem, 49 N.Y.U.L. Rev. 165 (1974); Sax, Takings,

Private Property and Public Rights, 81 Yale L.J. 149

(1971); Van Alstyne, Taking or Damaging by Police Power:

The Search for Inverse Condemnation Criteria, 44 S. Cal.

L. Rev. 1 (1971).

391. Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 15

N.E.2d 587 (1938), is generally regarded as the classic

articulation of the residual use test.

392. See, e.g., Dooley v. Town Plan & Zoning Comm'n, 151 Conn.

304, 197 A.2d 770 (1964), in which a local flood plain

ordinance prohibiting residential development was

declared a taking despite the fact that such uses as

marinas, clubhouses, recreation, and agriculture were

permitted. The Dooley decision should be distinguished

from a pure dimunition in value case, however, for the

court indicated that the entire purpose of the zoning

"contemplates a dimunition in land value and subsequent

acquisition by some government agency." Id, at 310, 197

A.2d at 773. See also State v. Johnson, 265 A.2d 711,

716 (Me. 1970), in which the Maine supreme court over-

turned the state's.wetlands regulation as applied on the

ground that it unduly diminished the value of the land-

owner's property.

393. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

I -

394. See, e.g., Goldblatt v. Town of Hemstead, 369 U.S. 590,

594 (1962), in which the Supreme Court adopted the

dimunition test but declared that "a comparison of

values before and after [regulation] is by no

means conclusive" to the taking issue. See also

Candlestick Properties, Inc. v. San Francisco Bay

Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 572,

89 Cal. Rptr. 897, 90G (1970), which found no impermissible

dimunition resulting from prohibition of coastal develop-


395. See Ocean Villa Apartments, Inc. v.

70 So.2d 901 (Fla. 1954).

396. See Plater, The Taking Issue in a Na

Floodlines and the Police Power, 52

233-34 (1974).

397. See Turnpike Realty Co. v. Town of D

City of Ft. Lauderdale,

tural Setting:

Tex. L. Rev. 201,

edham, 284 N.E.2d

891 (March. 1972), cert. denied, 409 U.S. 1108 (1973);

Turner v. County of Del Norte, 24 Cal. App. 3d 311,

101 Cal. Rptr. 93 (1972).

398. Comment, Regulation o. Land Use: From Magna Carta to

a Just Formulation, 23 U.C.L.A.L. Rev. 904, 923-31 (1976).

399. 201 N.W. 2d 761 (Wis. 1972).


II-: *--.. -,--..--rrr.~_._ III I -- .... .-..1-~ ~-~~-~.il


~4~ ~1~PT*W~ ~ ~dAPb *~pY4li~ .;~L3

400. Section 6. Eminent domain.--(a) No private property shall

be taken except for a public purpose and with full com-

pensation therefore paid to each owner or secured by

deposit in the registry of the court and available to

the owner.

401. Seldon et al. v. City of Jacksonville, 10 So. 457 (1891).

402. For an excellent discussion of the residual beneficial

use test to determine when land use regulation becomes

a compensable taking, see F. Maloney, A.J. O'Donnell,

Drawing the Line at the Oceanfront: The Role of Coastal

Construction Setback Lines in Regulating the Development

of the Coastal Zone, 30 U. Fla. L. Rev. 383 at 399-403


403. 1 So.2d 642 (Fla. 1941).

404. Id. at 646-7.

405. 349 So. 2d 667 (3d DCA 1977).

406. Id. at 670, citing Nattin Realty, Inc. v. Ludewig, 324

N.Y.S. 2d 668 at 671 (1971).

407. The Court did not preclude future compensation if the

plaintiff could show deprivation of his beneficial use

for public benefit.

i [ i i[ I i i i

408. 333 So. 2d (1st DCA 1976).

409. Id. at 61.

410. So.2d (Fla. 1st D.C.A., Case No. 11-419 filed

December 17, 1979).

411. Id. at page 6 of slipsheet opinion. Lee County

recommended that an amended zoning application be filed

which would permit a density of two units per acre (one

unit per acre was permitted) and which would cluster

the residential and incidental commercial uses on

acreage not deemed environmentally sensitive.

412. The district court elected not to address the question

of whether the Adjudicatory Commission's order contained

competent substantial evidence to support its environ-

mental findings. Further, the property owner's vested

rights argument was rejected by the court, as was the

constitutional attack upon S 380.06(8).

413. 10 P. 674 (Cal. 1886).

414. See generally Scurlock, Constitutionality of Water

Rights Regulation, 1 Kan. L. Rev. 125, 139 (1952).

415. 207 P.2d 440 (Kan. 1949). See also Baumann v. Smrha,

* 145 F. Supp. 617 (D. Kan.), aff'd per curiam, 352 U.S.

863 (1956); Williams v. City of Wichita, 374 P.2d 578

(Kan. 1962). 327


416. 207 P.2L 40, 448 (Kan. 1949).

S417. 127 N.W. 2d 708 (S.D. 1964).

418. See generally note, Water Rights and the Constitutionality

of the 1955 South Dakota Water Act, 11 S.D.L. Rev. 374


419. 120 N.W. 2d 18 (N.D. 1963).

420. 157 N.W. 2d 728 (N.D. 1968).

421. 513 P.2d 627 (Idaho 1973).

( 422. Id. at 635.

423. California-Oregon Power Co. v. Beaver Portland Cement

Co., 73 F.2d 555 (9th Cir. 1934); Southwest Eng'r. Co.

v. Ernst, 291 P.2d 764 (Ariz. 1955); Williams v. City

of Wichita, 374 P.2d 578 (Kan. 1962); Baeth v.

Hoisveen. 157 N.W. 2d 728 (N.D. 1968); Knight v. Grimes,

127 N.W. 2d 708 (S.D. 1964).

424. In re Hood River, 227 P. 1065 (Ore. 1924); Omernick v.

Department of Natural Resources, 238 N.W. 2d 114 (Wis. 1976).

425. Baumann v. Smrha, 145 F. Supp. 617 (D. Kan. 1956);

SBaker v. Ore-Ida Foods, Inc. 513 P.2d 627 (Idaho 1973);

Williams v. City of Wichita, 374 P.2d 578 (Kan. 1962);


Knight v( rimes, 127 N.W. 2d 708 ( 1964).

426. McCook Irrigation & Water Power Co. v. Crews, 96 N.W.

996 (Neb. 1903); Belle Fourche Irrigation Dist. v.

Smiley, 176 N.W. 2d 239 (S.D. 1970).

427. Baumann v. Smrha, 145 F. Sitpp. 617 (D. Kan. 1956);

Baeth v. Hoisveen, 157 N.W. 2d 728 (N.D. 1968).

428. Herminghaus v. Southern Cal. Edison Co., 252 P. 607

(Cal. 1926); Lux v. Haggin, 10 P. 674 (Cal. 1886);

Clark v. Cambridge; Arapahoe Irrigation & Improvement

Co., 64 N.W. 239 (Neb. 1895); Volkmann V. City of

Crosby, 120 N.W. 2d 18 (N.D. 1963); St. Germain

Irrigating Co. v. Hawthorn Ditch Co., 143 N.W. 124

(S.D. 1913); Neilson v. Sponer, 89 P. 155 (Wash. 1907).

429. 371 So. 2d 661 (Fla. 1979).

430. 349 So.2d 216 (4th D.C.A. Fla. 1979).

431. 371 So.2d at 667.

432. Id. at 671.

433. Id. at 670.


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