|
I. LAW OF STREAMS AND WATERCOURSES
General Considerations. Most legal studies of surface water
problems divide surface waters into two general categories: (1)
surface waters in well-defined channels including streams and lakes,
and (2) diffused surface water or water spread over the surface of
the land in a diffused state before it reaches these well defined
bodies of water. In this more detailed study, the laws concerning
water in streams and watercourses will be treated separately from
the laws governing water in other well defined surface bodies includ-
ing lakes, ponds and sink holes. Moreover, in the first category,
the study of streams and watercourses, the law concerning water
in natural streams or watercourses will be treated separately from
that applicable to man-made channels. The latter category of
watercourses will be treated in the second chapter of the study.
This first chapter, therefore, will be confined to those laws
governing the use and disposition of water in natural streams or
watercourses flowing in a definite channel confined within a bed
with banks and having a substantial degree of permanence and con-
tinuity. Since the law of such watercourses will vary with the
definition of a natural watercourse, it is necessary to consider
further the meaning of the term natural watercourse, and to determine
whether, in Florida,it has been decided to what extent, if any,
such watercourses include (1) underflow, (2) springs and percolating
ground waters that supply such watercourses, (3) waste waters drain-
ing into the stream, and (4) flood waters. The further problem
as to whether artificial waterways are treated as natural
-5a-
watercourses after the passage of time will be dealt with in the second ch .pter of the
study.
In addition, it will be necessary to determine the meaning of the term "riparian
land". Since Florida, along with other eastern states applies the riparian rights con-
cept, the manner in which title to riparian land may be and has been acquired in Florida
is of considerable importance. This study, however, is primarily a study of the legal
problems involved in the use of water, rather than a study of the problems connected with
the title to real property. Consequently, the latter problems will be touched on only to
the extent that they have a direct effect on the use of the water itself. A more de-
tailed study of the method of acquiring and holding title to riparian land has already
been undertaken by a member of this committee.4 Although there has been considerable
development and interpretation of the laws governing the use of water from natural water-
courses in some other eastern states, the litigation in Florida in this area has been on
a rather minor scale. This was due, perhaps, to the fact that until very recent years
the major water problem in Florida has been disposition of unwanted water rather than
the problem of apportionment of available supplies in surface streams. Sufficient cases
have been decided, however, to indicate the thinking of the Florida Court in this area.
These cases will be discussed along with applicable statutory law.
In addition, it will be necessary to consider in some detail the manner in which
the right of a riparian owner to use water is affected by the police power of the state,
as well as the effect of various Federal rights and powers on the rights of the individ-
ual. In this connection the rights of the federal government arf.ing f5m the power to
develop and protect navigation under the commerce clause of the United States Constitu-
tion5 are of great importance.
Finally, the legal problems connected with the pollution of watercourses will
be considered. In Florida, as in other eastern states, serious problems of pollution
arose long before modern methods of irrigation created water shortages. As a result,
considerably more case and statute law is to be found in this area. The power of the
federal government to intervene for the prevention of pollution will also be considered.
-6-
A. Definition of Natural Waterm i-. It is a physical fact that in many
streams a considerable portion of the water moves beneath the surface of the bed of the
stream. To what extent is this underflow and the percolating ground waters
which supply streams,included for legal purposes within the meaning of the term natural
watercourse? This matter has received consideration in other states where more litigation
concerning the use of water in natural watercourses has taken place, but no Florida leg-
islation or case law was found considering these problems. The related problem of the
extent to which natural watercourses legally include waste waters and flood waters
draining into such streams has received consideration in Florida and will be discussed
below.
As has been true in other areas of Florida Water law the meaning of the term
:natural watercourse:; has developed in connection with problems of drainage or disposi-
tion of water rather than in terms of the use of such water. The most important case in
this connection is Davis v. Ivey6 in which the Supreme Court of Florida was concerned
with the extent to which a railroad in traversing a natural watercourse must make pro-
visions for the passage of water through or under its right-of-way. In this case the
court adopted the following definition of a natural watercourse:
"A natural watercourse is a natural stream bed having bottom and sides
in which water usually flows in a defined bed or channel. It is not
essential to constitute a natural watercourse,that the flowing should
be uniform or uninterrupted. The other elements existing, a stream
does not lose its character or cease to be a natural watercourse be-
cause in time of drought the flow may be diminished or temporarily
suspended. It is sufficient if it is usually a stream of running waters.'
The court went on to hold that the railroad must provide passageway for flow
like that which occurred from the heaviest preceding rain. Parenthetically, the case
leaves unanswered a common problem in Florida today. Often when a railroad or road is
constructed, sufficient passageway is left for a volume of water like the heaviest from
preceding rain, but due to the improved drainage of surrounding land which is later brought
under cultivation, the quantity of water, even from smaller rains, is such that it cannot
adequately pass through the passageway provided and flood damage results to owners up-
stream from such passageway.7 In the absence of any legal solution to this problem, it
-7-
is impracticable in some areas in Florida to expand water control and drainage systems
upstream of such a passageway.8 Moreover, the problem may be aggravated in areas where
the watercourse after construction of the passageway becomes silted up or grown up with
bushes or other obstructions, making the passageway still more inadequate.9
It will be noted that the definition in the Davis case indicates that a stream
does not lose its character as a natural watercourse because in time of drought its flow
may be temporarily suspended. The court has indicated in other cases, however, that the
stream must have a well-defined and natural existencel0. This would seem to preclude the
conclusion that watercourses which operate only in times of flood or abnormally high
water are considered to be natural watercourses. Drainageways of this sort which carry
off diffused surface waters rather than a regular flow will be discussed in detail in
section 4 of this report dealing with the problem of diffused surface water.
Assuming the existence of a natural watercourse passing through riparian land,
the riparian owner in Florida is apparently entitled to deepen it in order to better
drain his land--provided that such deepening results only in the collection of additional
;percolation of surface water."l1 Seemingly, therefore, the flow of a natural watercourse
includes "percolation of surface water" and'the owner of a dominant estate has the right
to drain such water into natural watercourses even though this increases the quantity of
water on the lower estate. An earlier Florida case limits such drainage, however, to
waters which would naturally find their way into such a watercourse, and indicates that
a riparian owner may not divert waters into a natural drain if they would not find their
way into it naturally.12 This limitation, in turn, must be considered in the light of
the Florida Constitutional authorization that the legislature may provide for drainage
of the land of one person over or through that of another upon just compensation.13
The court has also sanctioned the use of natural watercourses for drainage of
industrial waste water, at least to the extent that the stream is capable of carrying off
such water without harm to lower riparian owners. Thus in Bray v. City of Winter Garden14
a lower owner who failed to clear an obstruction in his part of the stream was denied
relief against an upper owner dumping industrial waste waters into the stream where the
-8-
court found that if he had removed such obstruction the waters would have passed harmlessly
through his land. Possible pollution by such waste waters will be considered in subsec-
tion E below. By implication, at least, the Bray case would indicate that an upper
riparian owner could not ditch his land in such a way that during periods of high water
these ditches would cause the watercourse to overflow downstream land. While this has
not been definitely settled by case law in Florida, factual studies show it is a real
problem in a number of Florida locailities.15 Moreover, while the case indicates that a
lower riparian owner cannot complain of flooding if caused by his failure to remove an
obstruction in the stream where it passes through his land, the question remains unsettled
whether upper owners whose lands are being flooded because of such obstruction can legally
require the lower owner to remove it. surveys indicate this is also a real problem in a
number of Florida jurisdictions.16 Turning finally to special legislation, the legisla-
tion checked indicated no attempt to define natural watercourses as such.17
B. Definition of Riparian Land. There is considerable statute and case law
in Florida concerning the definition of riparian land, but these statutes and cases are
primarily concerned with a method of acquiring title to land abutting on natural water-
courses rather than the amount of land on which water from such watercourses can be used.
Statutes and cases will be considered in a moment, but first it should be pointed out
that a serious gap exists, at least insofar as problems nf irrigation are concerned, in
the lack of definition of the inland extent of riparian land. Several different
approaches to this problem have developed in jurisdictions where a shortage of water for
irrigation exists. Since many jurisdictions follow the riparian doctrine that water from
natural watercourses can normally be used only to irrigate riparian land, the definition
assumes considerable importance in these jurisdictions. Perhaps the majority of them
have limited the extent of possible irrigation by restricting riparian land to the
smallest tract held under one title in the chain of titles leading to the
present owner.18 -Under this rule a parcel of land detached from a riparian tract
and no longer touching the stream loses its riparian status, while, on the other
hand, inland additions to a riparian tract cannot be made riparian by coming under the
-9-
ownership of the owner of the land lying between such newly acquired land and the stream.19
A more liberal approach would define riparian land in such a way that an owner of land
contiguous to a stream would be entitled to riparian rights in all of the land without
regard to its extent or from whom title was acquired.20 Other jurisdictions have adopted
this more liberal view with the limitation that the land is confined to the watershed of
the stream involved.21 It would seem that in Florida, where in most areas the surface
streams carry more than enough water for irrigation of immediately adjacent land, the
more liberal definition or at least a definition which would allow the use of the water
on a reasonable amount of adjacent land would be preferable.
A further problem connected with the use of water from watercourses on ripar-
ian land is the problem of the place of diversion of such water. Specifically, is a
riparian owmer, if he can divert water from irrigation or other purposes, entitled to
make such diversion only on his own land or can he divert the water above or below his
land? No Florida case or statute law was found concerning this problem or the allied
problem of the right of a land owner to divert a natural watercourse to a new channel on
his land and return ,it back to its natural channel where it leaves the land. Prac-
tical problems have arisen in this area, however, where such diversions have resulted in
the flooding of adjacent land? -Such flooding would seem to be actionable as a trespass
under the usual rules concerning trespass by flooding.38
While the Florida Court had not clarified the depth of riparian land, or the
place of diversion, it has set forth certain other rights which result from riparian
ownership. Thus in Ferry Pass Inspectors and Shippers Association v. White River Inspectors
and Shippers Association22 the court states:
"Among the common law rights of those who own land bordering on navigable
water, apart from right of alluvion and dereliction, are the right of access
to the navigable water from the land and when navigation and other purposes
are expressed or implied by law, the right to a reasonable use of the water
for domestic purposes, the right to the flow of the water without serious
interruption by upper or lower riparian owners or others, the right to have
the water free from pollution, the right to protect the abutting property
from trespass and from injury by the improper use of water for navigation or
other purposes, the right to prevent the obstruction from navigation for an
unlawful use of the water or of the shore or bed that especially injures the
riparian owner and the use of his property, the right to use the water in
common with the public for navigation, fishing and other purposes in which
the public has an interest." 10-
-I0-
AID the court has since further stated:
"these special rights are easements incident to the riparian holdings,
and are property rights which may be regulated by law, but may'not be taken
without compensation and due process of law.'23
Since the existence of these rights is dependent upon the classification of the
abutting land as riparian land, the court and the legislature have taken steps to clarify
the means by which riparian ownership -can be acquired. In considering this matter we
must begin with the distinction between navigable and non-navigable water courses. The
bed of a non-navigable watercourse is subject to private ownership;24 in the case of
navigable streams, a riparian owner,s, in the absence of legislation, owns only to the
high water mark.25 A determination of whether a stream is navigable, therefore, is of
great importance. Discussion of this problem will be deferred to section D of this part
of the study. Assuming, however, that the stream is a navigable one, the meaning of the
term high water mark becomes important. While there is no applicable legislation, the
Florida Court has in this connection quoted approvingly from a Mississippi case to the
effect that:
"high water mark as a line between a riparian owner and the public is
to be determined by examining the beds and the bank and ascertaining where the
presence and action of the water are so common and ususal and so long con-
tinued in all ordinary years as to mark upon the soil of the bed a character
distinct from that of the bank in respect to vegetation as well as to the
nature of the soil itself and that only is to be considered the bed
which occupied sufficiently long and continuously to wrest it from vegetation
and to destroy its value for agricultural purposes." 26
Under the common law of Florida a riparian owner on a navigable watercourse,
holds title to the high water mark.
The state in its soverign capacity holds title to the bed of navigable waters
including the land between high and low water marks27 (subject to certain exceptions in
cases where Spanish land grants specifically included grants of submerged land but even
such grants carry title only to the high water mark unless otherwise specified in an
express grant.28)
It is of course possible for the Florida legislature to convey the title to
lands underlying navigable watercourses to the riparian owners so long as the public
right to navigability is not thereby interfered with. Two statutes enacted in 185029 and
-11-
192130 have conditionally vested in riparian owners on navigable streams the title to the
submerged land from the edge of the channel to the high water mark, the condition upon
which title vests being that the land has been actually bulkheaded or filled or per-
manently improved.
Title to these lands is subject to reversion to the state at any time before
they are actually filled in or permanently improved.31 The court has indicated that these
lands may be sold for purposes of improvement, and such improvement when completed will
apparently cut off the riparian rights of the former riparian owner whose land no longer
touches on the stream.2 But in the case of Marshall v. Hartman33 title to the land was
transferred to the Florida State Improvement Commission for use by the State Road Depart-
ment in building a bridge in Jacksonville; possibilities concerning the transfer to and
improvement of such land by private individuals have not been litigated. The decision,
however, is one which has caused considerable concern on the part of some members of the
bar of the State.34
a
Since the riparian owner on/navigable stream do not obtain title to the
land between the channel and the high water mark until they are improved, he does not have
the right to remove phosphate or other minerals from beneath the surface of the water in
this area since there has not yet been an application of the submerged land to the desig-
nated purposes of the statute.35
In addition to the general legislation granting riparian owners on navigable
watercourses the lands between the high and low water marks, there exists special legis-
lation giving to certain Florida cities submerged lands within their corporate limits.6
Land underlying natural watercourses is to some extent affected by this legislation. If
such a watercourse is navigable, it would seem, however, that the public rights stemming
from navigability would remain in full force despite such a grant.
C. Extent of Right to Use 'Tater From Streams and Watercourses. As pointed out
in the introduction, Florida has developed as a riparian state rather than one following
the doctrine of prior appropriation. There has, however, been considerable change and
development in the riparian doctrine in many eastern jurisdictions. The earliest cases put
-12-
primary emphasis on the right of riparian owners to have the water flow to them in its
normal course, undiminished in quantity or quality. As means of effectively utilizing
the water increased, emphasis shifted to the right of riparian owners to make reasonable
use of the water as it flowed by their property. The only uses sanctioned in earlier
days were for domestic and household purposes, including the watering of farm animals, and
these uses were generally referred to as "natural" uses as distinguished from artificial "
uses for irrigation, manufacturing, etc. As a general rule a riparian owner was permitted
to use such water as was necessary for his :natural uses" regardless of the effect on
other owners.
When artificial uses developed, the more progressive states permitted the
riparian owner to a reasonable use for these purposes; what was reasonable depended on
the uses being made by other riparians who had an equal right with him to use the water
for artificial purposes. In some states there is a recent trend toward blurring this
distinction between natural and artificial uses, and holding that riparian owners have
common or correlative rights in a stream, with each being entitled to make such use of
the water as is reasonable under all of the circumstances, taking into consideration the
uses of other riparian owners?9
There is practically no general law in Florida dealing with consumptive uses
of water from natural watercourses. One early Florida statute enacted in 19039s similar
to the Mill Acts so frequently found in the Northwest.41 It provides for the acquisition
of land on the other side of a stream for the erection of a dam for water power through
the use of eminent domain proceedings, along with provisions for the acquisition of such
surrounding lands as would be overflowed by the erection of such a dam. A 1920 Florida
case involving the Florida Power Company supports the right of an upper riparian owner
to compensation for flood damage from such a dam.42 It is to be noted that this early
statute makes no provision for the erection of dams for irrigation or other purposes, and
thus the statute as presently in force does not provide an answer to the problem of
liability for damage resulting.from the use of dams. The studies have revealed a number
of flooding situations resulting from construction of dams for purposes of irrigation,43
-13-
municipal use, or creation of lakes for fishing and recreation.45 The strict liability
doctrine of Rv]ands v. Fletcher generally is not applied by American courts to the
dancing of the bed of a natural stream.47 A dictum in the Florida Power Comnanv case
indicates that compensation might be obtained by injured landowners when the use of a
dam is considered unreasonable with reference to the rights of the affected landowners.48
On the same basis, an owner erecting a dam, even under the authorization of
the Florida Statutes, might be liable to lower riparian owners for damage resulting from
the bursting of the dam. Here again, the doctrine of strict liability has been rejected
when the dam failure results from an unprecedented cloudburst or other "act of God",49
and liability would therefore have to be based on the ground of unreasonable use of the
dam.
The problem of bursting dams is not unknown in Florida.50 Not only have dams
failed from natural causes, but several such occurances have apparently resulted from dis-
gruntled neighbors dynamiting the dams.51 Although the upper riparian owner would not be
liable for harm resulting from such dynamiting, the dynamiters, if apprehended, of course
would be civil as well as criminally liable.
In periods of drought, such as the State is presently experiencing, the
problem is no longer one of inundation but of deprivation. A study of actual cases
indicates that impounding of water, for irrigation or other purposes, by damming, has
resulted in downstream owners losing their source of water. In a number of cases this has
meant inadequate water supply for irrigation,52 and watering of stock,53 and in some
extreme cases, total drying up of the lower stream bed with the accompanying loss of
water for any purpose.54
Although there is authority for the temporary withholding of water in Florida's
watercourses for the non-consumptive use of power development, the state of development
of the law insofar as withdrawals for consumptive uses are concerned is not too clear.
In one early case where the primary consideration was the pollution of an "underground
stream; then being used as a source of water supply by the City of Tampa, the Supreme
Court of Florida restated the riparian rule with the reasonable use modification.55 The
-14-
--- - -
court did not indicate, however, the -~tent to which diversion for so-called artificial
uses such as irrigation or manufacturing might be permitted, and since the case was a
pollution case, it does not in any event establish a binding precedent insofar as the use
of this water is concerned. This case would indicate, however, that when the problem is
squarely presented to the Court, it will probably follow in the path of most other South-
eastern states, placing the emphasis on the reasonable use aspect of the riparian doc-
trine and permitting diversions which do not unreasonably interfere with use by other
riparian owners.
Such a doctrine, if judicially adopted, will permit a much broader and more
nearly complete utilizatior .f water than the older natural flow theory. This approach,
while it lacks the certainty which makes the prior appropriation doctrine so appealing
to larger agricultural users, has the advantage of being flexible as against the prior
appropriation theory which tends to fix the use of water in a permanent pattern which,
although it may be in the public interest today, may be considered wasteful in the light
of later technological developments.56 It is of interest to note that the legal machinery
presently exists in Florida to encourage the optimum operation of the reasonable use
doctrine. From the legal point of view, prevention of diversions from natural watercourses
can only be accomplished effectively through the use of the injunctive sanction. The
alternative to an injunction or court order to the defendant to cease diversion is an
action at law for money damages. As a practical matter, this latter remedy is of little
importance, both because of its expense, and because if the diversion is in fact reason-
able, a jury will be inclined to award little damages to the lower riparian owner unless
he can prove some substantial harm to himself.
The really effective sanction against such diversion, therefore, is the
injunction, a remedy available only in an :equity" court. Such injunctions are not auto-
matically awarded by most American courts. An important limitation on such relief is
the balance of convenience doctrine. Thus Mr. Justice Brandels in the case of Harrison-
ville v. Dickey Clay nufacturin Com 57 states:
ville v. Dickev Clay Manufacturing Comoanv, states:
-15-
"For an injunction is not'a remedy which issu's as of course. Where a
substantial redress can be afforded by the payment.of money, and the issuance
of an injunction would subject the defendant to grossly disproportionate
hardship, equitable relief may be denied although the nuisance is indisputable."
In jurisdictions applying this balance of convenience doctrine, an injunction does not
necessarily follow in all cases in which a legal right is violated.
The Florida court has not, as yet, employed this doctrine to deny injunctions
in diversion cases, but the denial of an injunction in at least two pollution cases on
the basis of the balance of convenience doctrine indicates that that doctrine is a
recognized part of the jurisprudence of Florida.58 In California, following the adoption
of the reasonable use doctrine by constitutional amendment in 1928,59 the Supreme Court
of California has made the amendment work by taking the position that reasonable use
does not necessarily mean equal use by all riparians,60 and refusing injunctions in favor
of damages on the balance of convenience doctrine when an injunction does not seem
warranted by the best interest of the state.61 A sensible application of the balance
of convenience doctrine in Florida may likewise be a very useful tool in the develop-
ment and application of the reasonable use -iule in this state. For more detailed
discussion of this sanction, see Chapter 7 infra, pp 69-77.
Our further matter in connection with the right to use water from natural
waterccu~ces is worthy of comment. In 1927, in the case of Tilden v. Smith62 the Supreme
Court of Florida indicated that flood water from such streams, which is of no substantial
benefit to a riparian owner, "may be appropriated by any person who can lawfully gain
access to the stream, may be conducted to land not riparian, and even beyond the water-
shed of the stream, without the consent. of the riparian owner and without compensation
to him." The general assembly of Kentucky in 1954 enacted legislation to provide similar
guarantees as to surplus water in periods of heavy flow. An irrigator, in some cases,
can thus acquire a reliable source of supply and, in fact, in Kentucky, about half of the
irrigators use this method of acquiring irrigation water.63 The Central and Southern
Florida Flood Control District is planning to collect and store excess flood waters in much
the same manner. These waters will then become available to irrigators in the Lake Okeechobee
-16-
area of t:e district and the state will benefit by the potential increase in the area
under cultivation. Due to the importance of this problem, consideration might well be
given to reinforcing the dictum of the court in the Tilden case with a legislative
declaration of policy similar to that enacted in Kentucky.
It is interesting to note that Federal legislation provides for the sale by
the Secretary of the Army for surplus waters collected in this way in reservoirs under
Ar-y control.64 The federal statute provides that such contracts for sale of water shall
not adversely affect presently existing legal uses of such water.
Assuming the application of the reasonable use doctrine to the normal flow .of
Florida's watercourses, a further problem arises in periods of shortage concerning the
extent to which the law establishes priorities for uses among domestic, agricultural,
and industrial users. Studies indicate the existence of a number of such problems.65
There is legislation in Florida to give municipalities a certain amount of protection in
66
such cases, but this legislation was not enacted for the purpose of establishing
priorities, but rather to allow municipalities the right to take necessary water through
eminent domain proceedings. There is a complete absence of case law on priorities among
users during dry periods, or indeed even during periods of normal flow. In this area,
as in the area of use of flood waters, Kentucky has taken the lead in legislative
clarification.67 Legislation similar to that in Kentucky, establishing a priority for
domestic purposes, which in that jurisdiction is defined to "include water for household
purposes, drinking water for livestock, poultry and domestic animals," might be advisable.
If such legislation were enacted, however, "domestic animals!" should perhaps be defined
in such a way as to prevent the possibility of the owner of a large herd of commercial
feeder cattle using the flow of a stream to the extent that he deprives those down stream
of water for household purposes.
-17-
.) _
Goverrnental. Powers Over Right of Use
Navieabilitv
There are a number of grounds on which the state and federal governments may
limit the use of water. Navigability, one of the most important of these grounds affects
the rights of riparian owners on Florida's natural watercourses, and could have a two-
fold legal effect since it may produce legal results on both a state and federal level.
If a stream, though navigable, lies wholly within a state, the mere fact of navigability
does not create federal rights, and the waters of the stream remain subject to the State's
exclusive control until the federal government specifically assumes jurisdiction through
congressional legislation asserting the reserved authority of the federal government
over intrastate navigable streams.68 The legal effect of navigability will therefore
be examined in two steps first, the effect insofar as state law is concerned, and
second, the effect if the stream is declared navigable by the federal government.
Legal Effect of Navisability: State Law
From the viewpoint of state law, the first thing to determine is the meaning
of the term "navigable The Legislature of Florida has not seen fit to define the
term, but Florida cases dating back to 1889 have established a judicial definition. In
the early case of Bucki. v. Cone,6 which involved injury to a bridge on the Suwannee
River above White Springs, the Florida Court, after pointing out that at common law
tidal streams were regarded as navigable, went on to say:
"In this Country all rivers, without regard to the ebb and flow of the tide,
are generally regarded as navigable as far up as they may be conveniently used
at all seasons of the year by vessels, boats, barges and other water craft for
purposes of commerce; and others are regarded as navigable when so declared by
statute. Further than this, what constitutes a navigable river free to the
public is a question of fact to be determined by the natural condition in each
case. A stream of sufficient capacity and volume of water to float to market
the products of the country will answer the conditions of navigability .
whatever the character of the product, or the kind of floating suited to their
condition and it is not essential to the easement that the stream should
be continuously, at all seasons of the year, in a state suited to such floatage."
This case established that Florida streams will be considered navigable even though they
are so shallow as to be suitable only for the floating of logs, and that they need not
be of sufficient depth to float vessels. Two points in this definition were further
-18-
clarified in later dicta. Concerning the issue of navigability of tidal waterways., the
Court in 1921 took the position that such waterways were not navigable unless they were
of such size, depth, and other conditions as to be in fact capable of navigation for
useful public purposes; such waterways are not then navigable "merely because they are
effected by the tide".70
In 1909 the Court had occasion to consider further the factor of continuity of
possible navigation. In a case involving the title to the bed of Lake Jackson, the
Supreme Court of Florida held that that lake was a navigable lake even though (1) most
of the lake bed during ordinary water levels could be navigated only by flat bottomed
boats drawing no more than 6 inches of water, and (2) large portions of the bottom of the
lake were dried out for such long periods of time that crops were planted and harvested
on the bed. The fact that the lake went dry at times did not strip it of navigability
since in an ordinary state the court found it to be navigable.71
The Florida Court has also considered the relationship to navigability of the
meandering of the boundary of a stream in the original official survey of the state. In
the Bucki case, the Court held that the fact that in the original survey the river was
meandered provides a mark of navigability.72 It should be noted, however, that the fact
that the stream was or was not meandered is only evidence of navigability, and that in
the last analysis the real test of navigability is whether the watercourse is navigable
in fact. The Court has held that the fact that a stream was not meandered and that lines
of survey were protracted over the bed of the river and patents issued therefore, does
not change the character of the river as navigable or serve to convey title to the land
under the river.73 Moreover, where such a stream was meandered, the meanders are not
necessarily the boundaries of the stream, and hence a purchaser who receives a deed from
the United States conveying land shown to be bordering on a navigable river takes title
up to the actual high water mark rather than the meander line.4
Under the state definition of navigability as navigability in fact, the Court has
indicated that in order to be navigable, the watercourse must in its natural state be
capable of sustaining navigation without artificial improvement.75 It may be necessary,
-19-
_1_ ___
however, to distinguish between a stream which is in no part navigable until artificially
improved and a stream which is partly navigable and becomes navigable to a further extent
because of artificial improvement. As to the latter, the Attorney General has taken
the position that "where existing navigable waters are improved by raising the level
thereof by artificial means, navigation will not be confined to the original channels,
but extends to such of the waters as may be navigable after the raising of the level of
waters.76
Assuming a stream to be navigable, what effect does this navigability have on the
rights of a riparian owner? To begin with, the owner of the riparian land loses the
right to exclusive possession and control of the shore between high and low water marks.
On this basis a riparian owner in 1909 was denied an injunction by which he sought to
prevent a stranger from using the shore in front of his riparian holdings for the pur-
pose of inspecting and working on logs belonging to the stranger who was engaged in the
logging business. The court indicated that the plaintiff could have relief from total
exclusion from access to the,water, but that he had no exclusive right to the use of
either the waters or the shore adjacent to his riparian holding.?7 Moreover, if a street
runs to a navigable stream the shore and submerged lands at the end of the street
apparently belong to the public rather than to the owner of the fee in the street, and
members of the public have a free right of access to the stream.78
Establishment of the fact of navigability also has an important effect on the
right of the state to convey the land under such navigable waters to private individuals.
The title to submerged navigable land does not vest in the Internal Improvement Commission
of Florida under the Submerged Land Act. The Internal Improvement Commission, therefore,
does not have the power to convey or sell such land;79 rather, such land is held in
trust by the stance in its sovereign capacity. As we have already seen, the legisla-
ture has granted defeasible title to this land underlying navigable streams as far as
the edge of the channel to riparian owners upon condition that they fill and improve such
80
land. In construing these statutes, the Supreme Court of Florida has tak.n the position
that the state may fix the exterior lines of navigability so long as the rights of the
people to the use of the waters are not thereby substantially impaired.81 The Internal
-20-
) ._ _. ^__ I11_I ~_ ~
Improvement Commission, on the other hand, cannot make such grants, since it does not
hold title to this land. Thus a conveyance of land in the mouth of the Amelia River,
a navigable river, by the trustees of the Internal Improvement Fund, acting under the
Swamp Land Grant Act, was held to be invalid. The Court based its decision on the fact
that the land which the trustees attempted to convey was within the bed of a navigable
river and title to such land passed to the state in its sovereign capacity when Florida
was admitted to the Union.82
In addition to the general state law discussed above, there are a number of special
acts under which various districts lying in one or more counties have been established.83
These districts have been granted power to improve natural watercourses in aid of
navigation, together with the power to tax the property in the district for the improve-
ment made. Although such acts generally do not cover the payment for injuries to
riparian owners, it would seem that such injuries would be actionable on the general
principles set forth in the discussion of flood control measures infra page 26.
LeeAl Effect of Navigabilitv: Federal Law
A determination that a watercourse is navigable in the federal sense does not
strip the state of its proprietary control over the bed of such a watercourse.8 It
does, however, place drastic limitations on the control of the state over the use of the
the
waters in a watercourse, as well as affecting.:/ rights of riparian owners. It is,
therefore, of importance to examine this federal power and its origin. The federal
power in relationship to navigation stems from the commerce clause of the United States
Constitution.85 Interpreting the meaning of this clause, in 1865, the Supreme Court
of the United States said,
"'Commerce includes navigation. Power to regulate commerce comprehends
the control for that purpose, and to the extent necessary, of all the
navigable waters of the United States which are accessible from a state
other than those in which they lie. For this purpose, they are the public
property of the nation, and subject to all the requisite legislation by Congress."8
-21-
L ___ _I ~l___L_ j^__~ _I~ _^_ ^I
Since all or practically all of Florida's navigable water courses run into the ocean or
the Gulf of Mexico and hence, "are assessible from a state other than those in which
they lie",8 Congress has the power to legislate concerning them.
One reason for assumption of federal authority over intrastate navigable
streams is for flood control purposes; the federal government has asserted jurisdiction
over a number of such streams in the Central and Southern Flood Control District on this
basis. Likewise, Congress may assume jurisdiction over navigable waters for the pur-
pose of developing power. The power cases are generally sustained on the ground that
dam
the erection of a power/serves to improve navigation. As was said by the United States
Supreme Court in validating the erection of Boulder (now Hoover) Dam, "the fact that
purposes other than navigation will also be served could not invalidate the exercise
of the authority conferred, even if those other purposes would not alone have justified
an exercise of congressional power.89
An important question for Florida, therefore, will be the question Jhen is
a river navigable in a federal sense and, hence, subject to federal control?'- Basically,
the test is the same as that enunciated by the Supreme Court of Florida: "is the river
navigable in fact?90As in the state cases, actual use is the best evidence of
navigability. Such use need not be made by vessels, and use for floating logs is
sufficient to render such a stream navigable.91 Moreover, although the basis of federal
control is the commerce clause, the Supreme Court of the United States has held that
use of a waterway need not be commercially important to sustain such intervention, and
use by private boats such as is frequently the case in Florida's waterways is strong
evidence of the navigability of the stream.92
Contrary to the position of the Florida Court that a watercourse to be
navigable must, at least in part, in its' natural state be capable of sustaining naviga-
tion without the necessity of artificial improvement, waterways are navigable in a
federal sense if by means of artificial aid, they can be made suitable for navigation.93
Moreover, the Supreme Court has held that when any portion of a stream is navigable, the
federal government has the power to control not only the navigable portion but also the
-22-
/______ ~YIYIL-_LIIILIIII------
upper non-navigable reaches of the waterway, where diversions for irrigation or other
purposes in the non-navigable portions would affect uninterrupted navigability in the
lower reaches of the river.94 This same argument was used to justify the erection of a
federal dam, the Dennison Dam, in the upper non-navigable reaches of the Red River in
Oklahoma.95
To what extent has the federal government made use of the power to protect
navigation as the basis for controlling state watercourses in Florida? The Central and
Southern Florida Flood Control Project is, of course, the most outstanding example. The
justification for such a project is a finding that flood control on navigable waters or
their tributaries is the proper function of Congress in order to prevent destructive
floods which in turn obstruct navigation. In enacting federal flood control legisla-
tion, Congress has required that flood control projects must be submitted to an affected
state for comment, and in the event that the state objects to the project, the work can-
not be authorized without a further specific approval by Congress itself. Congress,
nevertheless, has the power to order the work done over the objection of the state.9
When water .is collected in a reservoir which is a. part of such a flood con-
trol project, it may be sold by the Secretary of the Army "at such prices and on such
terms that he may deem reasonable.98 The legislation authorizing such sales contains
a provision that contracts for the water shall not adversely affect existing legal uses
of the water, a provision which would protect irrigators who were already operating in the
muckland area of the Everglades when the flood control project went into operation.
In addition to flood control projects, the federal government may, and
frequently does, intervene in support of navigation projects, generally with a require-
ment for local contribution as a condition precedent to federal grants for the work.99
Going one step further, the Supreme Court has stated that there is no
constitutional reason why Congress cannot treat the "watersheds as a key to flood control
on navigable streams and their tributaries. Nor is there a constitutional necessity for
viewing each reservoir project in isolation from a comprehensive plan covering the entire
basin of that particular river'100 On this basis, Congress has legislated for the
-23-
-------- ---
prevention of soil erosion to protect rivers and harbors and maintain navigability.101
Jurisdiction over this phase of aid to navigation has been vested in the Department of
Agriculture, and sub-delegated to the Soil Conservation Service of that Department.
This Service, acting through conservation districts, makes technical assistance avail-
able to individual farmers so that they may carry out drainage operations on their land.
Such legislation has recently culminated in the Tatershed Protection and Flood Prevention
Act, commonly known as the Small Watershed Act,under which federal aid is given for
flood control in watershed areas not exceeding 25,000 acres.102
Finally, a word should be said about the place of the federal government
in interstate water disputes involving navigable streams. Such disputes in connection
with some of Florida's northern rivers are quite possible in the foreseeable future.
The Constitution of the United States permits the working out of such disputes through
interstate agreements or compacts, when approved by Congress.103 The compacts are
worked out between the states, along with machinery for their application. They provide
a much more satisfactory method of settlement than sporadic litigation concerning
isolated points of disagreement. Of course, the federal courts have jurisdiction over
interstate disputes in the absence of compacts, and have usually handled such cases on
the basis of equitable apportionment, a doctrine closely allied to the reasonable use
104
doctrine discussed sunra page 2.
It is evident that Congress has tremendous powers over navigable streams
under the Commerce Clause of the Constitution. How do these powers affect the private
interests of riparian owners? One obvious effect is in relation to private dam
construction.105 Since such construction interferes with navigability, Congress early
prohibited the erection of dams unless the consent of Congress and the approval of the
plan by the Chief of Engineers and Secretary of the Army had been obtained.106 Similar
state legislation, operating in local areas, has been enacted in Florida,107 requiring
approval of the appropriate authorities prior to erection of obstructions in navigable
waters. It has been held that the federal statute did not abolish the common law
-24-
..dailail "' I"I~^.lmm----
riparian right to build a dam across a navigable stream.18 On the other hand, authoriza-
tion by the Chief of Engineers or Congress does not relieve an individual from liability
for harm to riparian owners on the stream where such a dam is erected.109 It has been
held that the federal government is not legally liable for the destruction of private
property below the high water mark in connection with navigation improvements, since the
right to make such improvements has been held to extend "to the entire bed of the stream
110
which includes the land below ordinary high water marks."1 On the same basis, the
destruction of oyster beds in the course of channel improvement has been held not to be
compensable,11 although Congress has recently authorized the Court of Claims to award
damages to oyster growers in this connection.112 Riparian owners on a non-navigable
tributary of a navigable watercourse, however, may be able to collect damages from the
federal government where an improvement in the navigable area results in flooding or other
damage to land on the non-navigable tributary.113
Other Governmentl Powers
Further federal authority over water resources within the state is derived from
the property clause of the United States Constitution which gives Congress the power 'to
dispose of and make all needful rules and regulations respecting the territory or other
property belonging to the United States:.114 While this provision is not of great
importance in Florida, it has had tremendous significance in the development of water
law in the west, where federal ownership of the public domain provided the basis for
establishment of the doctrine of prior appropriation in most of the western states.115
Federal proprietary authority is of some importance in Florida, however, since under it
Congress has complete power over water and water rights on public land. Any state
regulation of water rights in or affecting the Everglade National Park or areas such as
the Ocala National Forest would, therefore, be subject to this federal power. It is the
present federal policy to permit use of waters on these lands in accordance with state
laws and regulations, but a permit must be secured from the federal government.ll6
In addition to the federal bases for intervention in state watercourses, :there are
state constitutional provisions of police power17 and the power to act for the protection
118
of the general welfare. Pursuant to these latter powers, one of the most important
-25-
areas of intervention is that of flood control. The extent of the flood control problem
in Florida is indicated by the frequency with which this problem was raised in the 1956
county hearings of the Florida Water Resources Study Commission.119
From a practical viewpoint, the most important flood control legislation, insofar
as the State of Florida is concerned, is the federal and state legislation under which
the Central and Southern Florida Flood Control District was established in 1949.
Following the disastrous flood which engulfed most of South Florida in 1947, the
Congress of the United States in 1948, by an amendment of the 1936 Flood Control Act,
authorized funds for a flood control project in this area on condition that the state
120
participate in the project. The legislature of Florida in turn enacted Chapter
25214, Laws of 1949, creating the Central and Southern Florida Flood Control District.121
Section 16 of the Act as amended by the 1955 Florida Legislature authorizes the district
"to clean out, straighten, enlarge or change the course of any waterway, natural or
artificial, within or without the district; establish, maintain and regulate water
levels in all canals, channels and reservoirs owned and maintained by the district; .
and to hold andhave full control over the works and right of ways of the district."l22
This statute gives the Central and Southern Florida Flood Control District broad powers
to control the physical contours of actual watercourses within the district, and under
its authority to regulate water levels, the power to interfere with the normal right of
use by a riparian owner of the water in such watercourses.
It is not clear from the statute whether a riparian owner is entitled to damages from
the district for changes in a watercourse which result in depriving him of the use of such
123
water, or for raising the level of the watercourse resulting in flooding of his lands.1
The statute does give the district eminent domain power24 and, while the district, as a
subdivision of the state, probably shares the immunity of the state from tort actions
125
. for such harm, it is arguable that the
-26-
district, when it exercises such powers, is in effect taking an easement in the water-
courses and should be required to make compensation as though it had exercised the right
126
of eminent dcItain.
In addition to the establishment of the Flood Control District, the Legislature
has enacted four types of Drainage Acts of statewide application. The first of these
is the General Drainage Act 27 authorizing the formation of drainage districts upon
approval of the Circuit Courts of the state. This Act likewise affects the rights of
riparian owners on the natural watercourses inasmuch as Section 28 of the Act provides
that such watercourses:
"Shall, if necessary to the drainage of any lands in said district, be
connected with and be made a part of works and improvements and a plan of
drainage in said districts,..."
While the Act provides for payment by the district for rights-of-way,128 it does not
make provision for payment for damage to natural watercourses, or for interference with
other common law rights of riparian owners. If these owners are to recover for the loss
of such rights, it would seem that recovery would depend upon the easement argument
suggested above in connection with the taking of similar rights by the Flood Control
District.
In addition to the General Drainage Act, the Legislature has also provided for
129
drainage by counties,2 and for the drainage of swamps and overflow lands upon petition
of the Board of County Commissioners of any county.130 Like the General Drainage Act,
the first of these statutes does not specifically provide for compensation for inter-
ference with riparian rights by drainage by counties, but the latter statute dealing
with drainage of swamps and overflowed lands does have a specific provision for the
assessment of any damages which will be sustained by the construction of drainage ditches.131
Jhile this statute does not specifically refer to damage to riparian rights in water-
courses into which such ditches drain, such damages are arguably within the intendment
of the Act.
The Constitution of Florida declares that the legislature may provide for
drainage of the land of one person over or through that of another upon just compensation
-27-
to the owner of the land over which such drainage is had.132 Such drainage may damage
lower riparian owners on a natural watercourse into which the land is drained because of
the increased quantity and rate of flow resulting from such drainage.133 The Courts of
the state have not as yet indicated whether a non-riparian owner draining under this
constitutional provision is liable for harm to lower riparian owners resulting from such
drainage.
The fourth type of state-wide drainage legislation which may affect riparian
rights in watercourses is the mosquito control acts.134 The first of these acts authorizes
counties to act as mosquito control districts, giving them drainage powers which may
interfere with riparian rights in the same way as the powers of the drainage districts
discussed above.135 The other two mosquito control acts provide alternate means of
establishing mosquito districts upon the petition of affected freeholders.136 Both of
these acts likewise provide drainage powers which may affect riparian rights, but none
of these acts make any provision for compensation to riparian owners for such interference.
But since these districts are entities of the state, the same arguments with respect to
just compensation that were made in the case of the Flood Control District would seem
applicable.
Finally there is one other type of district authorized by state-wide legislation,
which may affect riparian rights, this is the erosion prevention district.137 While
these districts were apparently authorized primarily for the purpose of combatting beach
erosion, the language of the statute under which they were created is broad enough to
cover the creation of such districts in inland counties where necessary to control erosion
of natural watercourses.138 If such a district were created it would give rise to the
same problems in connection with riparian rights as the other districts discussed above.
In addition to this general legislation, special legislation has been enacted
for numerous counties in the state creating at least 10 types of special districts
affecting water use and control. These districts include drainage districts,139 inlet
140 141 142 143
districts, improvement districts, mosquito control districts, navigation districts,
144 145 146
water supply districts, sanitary districts,5 conservation districts46 service
-28-
districts,147 and irrigation and soil conservation districts.148 All of them through
their powers to interfere with natural watercourses may affect riparian rights in the
same way as the districts created by the general legislation discussed above.
Returning for the moment to the exercise of federal authority over state
watercourses, if the thought is left that this is entirely a one-way control, it may
be appropriate in concluding this discussion of governmental powers to point to the
fact that Congress requires coordination with state authorities in the case of most
federal programs for development of water resources within a state.
State participation in federal development is provided for in a number of
ways. Thus, consultation with the state Fish and Game Commission is required of any
federal agency controlling water within the state,149 and is also required in connection
with pollution control programs, 50 which will be discussed in the next portion of
this report. In the case of the Central and Southern Florida Flood Control Project,
the state is required to provide the right of way for the project, and upon completion
it will be turned over to the state for maintenance and operation.
Pollution of Streams and Watercourses
The pollution of Florida streams and watercourses is a matter of grave
concern to the citizens of the state, as evidenced by the number of pollution problems
raised at the soil conservation district hearings in 1954,151 and at the county
hearings held by Florida Water Resources Study Commission in 1956.152 The pollution
153
complained of resulted in part from municipal waters,5 in part from industrial
wastes,154 and in part from the use of insecticides,155 with the industrial wastes being
by far the most serious offender. There are statutes of both general and special
application designed to prevent such pollution. Why, then, does it continue on
such a wide scale? An analysis of these statutes and the common law cases regard-
ing pollution may provide a part of the answer to this question.
-29-
~ _~_I_
Common Law Remedies Open to An Individual
At common law there are three possible approaches to the problem of pollution.
In the first place, the pollution may be classed as a nuisance, making applicable the laws
regarding prevention of nuisances. Secondly, the dumping of wastes, particularly indus-
trial wastes, into the stream might be considered to be the result of a non-natural use of
the land to which the common law of England attached strict or absolute liability for harm
resulting from such use.156 A Florida circuit court in the case of Avue v. American
Agricultural Chemical Company rejected the strict liability approach and placed'
liability on a third basis, requiring proof of negligence on the part of the industry as a
prerequisite for liability and damage.157
The possibility of being able to recover damages from a polluter normally does
not provide an adequate remedy for the prevention of such pollution. This is true for
several reasons. Most serious cases of pollution either involve municipalities, or
industry. Municipalities are not subject to suits for damages for torts committed by them
while they are acting in a governmental capacityl5, and sewage disposal is generally
considered to be a governmental rather than a proprietary function. As for industrial
willing
pollution, large industrial polluters are generally/to settle for damages as a part of the
cost of carrying on their business--or by resisting suit can make the remedy by way of
damages so expensive that a private individual may be unwilling to undertake such a suit.
If such individuals undertake to band together for the purpose of bringing suit for damages
on the theory of nuisance, they will be confronted by cases denying them the right to sue
jointly for damages for such pollution because the damages suffered by them are not the
same.159 Moreover, if one landowner undertakes to join in a single suit several polluters
whose waste combine to damage him, he may be blocked by an early Florida case denying the
right of the joinder in this situation on the ground that the defendants were not acting
in concert.160
As an alternative to an action for damages, the individual riparian owner may
seek an injunction in equity against further pollution, and if such an injunction is
granted, the equity court may award damages for past harm in the same suit. The injunctive
- 30 -
_C~ ~__ ___1~ r__
remedy is a much more effective sanction because, if granted, it will result in an order
from the court for the polluter to cease his wrongful activity. In the absence of legis-
lation, however, the Florida Court has indicated that the individual must do more than
establish the fact of pollution--he must also show substantial damage to himself. Failure
to establish this damage will result in the denial of an injunction.161 Even if such
damages are established, the riparian owner may nevertheless be denied an injunction on
the balance of convenience doctrine.162 This doctrine is particularly likely to be applied
against him where the offender is a municipality whose citizens will be greatly harmed if
an injunction is granted since the result would be to prevent the disposal of their sewage.
In at least one case the Supreme Court of Florida has denied injunctive relief on this
ground.163 This leaves the private individual with very little remedy for the prevention
of stream pollution in such cases. No Florida cases were found in which injunctive relief
was granted on a common law basis, although there have been a number of cases involving
other legal problems in which riparian owners have been informed that they have "the right
to have the water kept free from pollution. '164
Remedies by State Authorities
In addition to common law remedies, there is a possibility of relief by state or
federal action. Pollution of navigable streams, since this interferes with rights of use
of the public, would appear to be a public nuisance at common law, thus providing grounds
for injunctive relief at the request of public authorities.165 No Florida cases were found,
however, recognizing this common law right. In the alternative, pollution of streams may be
nortivdden .by. ststute. There are a number of such
statutes in Florida of both state-wide166 and limitedl67 scope.
To be effective, anti-pollution statutes should provide for injunctive sanctions.
The general and special legislation forbidding pollution of such a nature as to endanger
the fish in Florida's watercourses provides only for criminal punishmentl8 and is weakened
by lack of provisions for injunctive enforcement.
In addition to the statutes for the protection of fresh water fish, there are
three statutes of state-wide application which are concerned with pollution of Florida's
31 -
watercourses. The first of these, the Pollution of Waters Act of 1913, forbids any
deposit of deleterious substances in the rivers of the state if such substances are
"liable to affect the health of persons, fish, or livestock."170 Enforcement of this
law is placed under the supervision of the State Board of Health. On its face the
statute seems broad enough to prevent all undersirable pollution of Florida's streams,
but the law has no provisions for injunctive enforcement--criminal penalties only being
provided for its violation. The number of complaints concerning industrial pollution
in the 1954 and 1956 statewide surveys would indicate that this law as it presently
exists is ineffective.
In an apparent effort to plug this loophole, the State Board of Health obtained
170a
an amendment to the chapter enumerating the general powers of the Board. This
amendment gives the Board the power "to enjoin and abate nuisances dangerous to the
health of persons, fish, and livestock," This amendment may prove helpful to the
Board in its pollution control work, but it does not strengthen the Pollution of Waters
Act since that act does not specifically designate the pollution declared unlawful by
it to be a nuisance.
A 1955 statute, the County Water System and Sanitary Financing Act,171 empowers
boards of county commissioners of counties establishing water or sanitary sewer systems
under the act to seek injunctionsl2 against pollution of any source of water supply for
human consumption to be used in a water supply system established under the act. This
statute may remedy in part the weakness of the 1913 Pollution of Waters Act but it remains
to be seen whether county authorities will take action under it.
A final pollution statute, dealing with wastes from mines,173 also authorizes
boards of coi, commissioners to seek injunctions to prevent the escape of waste
resulting from mining operations into the streams of Florida. This statute may be
accomplishing the purpose for which it was designed since neither the 1953 Soil
Conservation Survey nor the 1956 Problems Inventory174 disclosed complaints concerning
pollution resulting from waste from mines. The statute has several loopholes, however,
inasmuch as it requires as a condition to obtaining an injunction proof that the person
-32- .. ....... ..
conducting mining operations is not using due diligence to prevent the escape of waste
or debris, and it also provides that the escape of such debris due to excessive rains or
floods shall not be an offense within the meaning of the chapter.175 These statutes
could be considerably strengthened if they provided that injunctive suits in the name
of the state might be instigated by private individuals if public authorities failed to
take appropriate action. Such legislation might be patterned after the provisions for
injunctive suits by private individuals to enjoin gambling establishments and other
designated public nuisances of a like nature.176
In connection with pollution control by state authorities, there are two Florida
176a 176b
special acts that should be commented on. By these acts Nassau County and Taylor County
are declared to be industrial counties and the acts state that it is in the interest of
the public that industry be empowered to discharge sewage, industrial and chemical wastes
into the tidal waters of Nassau County and into the Fenholloway River and the waters of
the Gulf of Mexico into which the river flows. Such attempted limitations on pollution
control have been the subject of severe criticism at the hearings of the Water Resources
Study Commission. If attacked, the legislation might well be held unconstitutional on
the ground that it deprives riparian owners on these waters of property rights without
compensation in violation of the state and federal constitutions.76
Federal Action
Let us now consider the part played by the federal government in pollution con-
trol. Until 1948, Congress concerned itself only with such pollution as would result in
a direct impediment to navigation, and prohibitions generally were aimed at waste "other
than that flowing in a liquid state."177 A broad anti-pollution law, the Federal
Water Pollution Control Act, was enacted in 1948.178 Congress made reference not only to
navigation but also to public health and welfare as justification for the legislation.
This act contains provisions for injunctive action to halt pollution nuisances, but under
the original legislation the Attorney General was authorized to initiate suits only if
the state where the pollution originated consented to such a suit. This limitation on
the enforcement of the Act was removed by amendment of the Act in July of 1956.178a
-33-
- i' T* r
Under the amended act, the Surgeon General must first request the state water pollution
control agency of the polluting state to take necessary remedial action. If such action
is not taken within six months, a hearing is scheduled before a board on which the
affected states are represented. Finally, assuming the pollution continues, the
Secretary of Health, Education and Welfare may request the Attorney General to initiate
suit at the written request of the pollution control agency of the state being injured.
Although such injunctive sanctions may now therefore be sought as a last resort,
.,: the primary purpose of the Act is apparently to provide a means by which the federal
government, through the Surgeon General, may provide technical assistance to state
agencies and industries in the formulation and execution of state pollution control programs
The Federal Water Pollution Control Act is also designed to encourage states to
negotiate compacts between themselves for the control of interstate pollution and it
gives blanket consent to the states for negotiation of interstate compacts for this
purpose.179 Such compacts must, however, be approved by Congress, and as yet Congress
has approved no compacts initiated under this Act, although several interstate compacts
for the control and abatement of pollution were negotiated prior to the enactment of
180
the 1948 law.180 Several problems reported to the county committees of the Florida
Water Resources Study Commission involved pollution of Florida streams by industries
in Georgia and Alabama. Perhaps the solution to some of these problems may be found
through this act.
Another solution to interstate pollution problems might be for the State of
Florida, acting as parents patriae, to bring an original action in the United States
Supreme Court seeking to enjoin the industries in the offending states and force them
182
to correct the pollution nuisance. In Georgia v. Tennessee Copper Co., the State of
Georgia successfully enjoined industries in Tennessee on this basis. Industries near
the border in Tennessee were polluting the air in Georgia; the noxious fumes caused
personal discomfort to citizens and ruined crops and foilage. Tennessee stressed the
importance of the copper industry and asked the court to apply the balance of convenience
doctrine.183 The Court indicated great reluctance to apply the doctrine against a
-33a-
~II
state acting in a quasi-soverign capacity, and granted a mandatory injunction against
the offending industries, commanding them to take corrective measures. Individual
citizens of Georgia had previously been denied the same injunctive relief in the
184
Tennessee courts on the basis of the balance of convenience doctrine.
Prevention of another type of pollution, that due to salt water intrusion, has
also received some congressional attention.185 This is an acute problem in some areas
of Florida where the erection of salt water barriers in navigable streams is necessary
for the protection of municipal water supplies. As a matter of law, the consent of
the federal government may be necessary before such barriers are constructed,186
though doubtless this consent can readily be obtained.
II. MAN MADE CHANNELS
A discussion of the present state of the law regarding water in man made
channels should begin on a note of caution. The man made channel may have become a
natural watercourse in the eyes of the law. This happens when the channel has been
constructed with the intention of using it permanently and it has been used consistently
with this intent for a considerable period of time187 While no Florida case law
squarely on this point has been found, the possibility that an old canal may be held
188
to have become a natural watercourse should not be minimized88
Water in artificial channels is not ordinarily subject to the usual rights of
a riparian owner.189 In defining the riparian rights incident to land bordering upon
navigable waters ingress, egress, boating, bathing and fishing the Florida Legis-
lature does not mention the distinction between artificial channels and natural water-
courses.190 Although the language of the statute is broad enough to encompass both,
the general rule of strict statutory construction would probably limit the application
of the statute to natural watercourses alone191
of the statute to natural watercourses alone.
-34-
|
