,' '. -
tb>ecaiear 9, 1974
W4. o OTO: Myron Gibbons
.. Ralb Robert Gibbons "
SUBJECT: Artificial Waterbodies
fl 14 rI) ~
This is in response to your memorandum dated November 19, 1974,
in which you requested that I obtain the "latest law" regarding
I. FLORIDA LAW
In general it can be said that there are a "surprisingly small"
number of cases on the subject of artificial waterbodies. F. Maloney,
S. Plager, & F. Baldwin, Water Law and Administration: The Florida
Experience 24.1 at 60 (1968). And in Florida, the authority is sur-
The most explicit authority on the subject is Clement v. Watson,
63 Fla.109, 58 So. 25 (1912). A shallow, non-navigable cove or lagoon,
an offshoot of the navigable New River Sound, was surrounded, except
for its mouth, by the property of a Mr. Watson. He was the owner of
the bottom land of the cove, also. Watson's predecessor in title
dug a channel in the cove, making it navigable, so that he could
use the cove to harbor his yacht. Mr. Clement and Mr. Watson had an
altercation when the former attempted to fish in the cove. Navigable
waters are, of course, open to the public for purposes of navigation
and other uses. The land underlying navigable waters are, except
in rare instances, owned by the State of Florida in trust for its
people. The land under non-navigable water bodies is subject to
private ownership. No riparian rights exist by virtue of ownership
of land abutting on a non-navigable water body, while such rights
do vest in the owner of upland abutting navigable waterbodies.
Therefore, if this cove were naturally navigable, then Mr. Clement
would certainly have had the right to fish therein. On the other
hand, if it were naturally non-navigable, Mr. Watson could have
excluded him. In fact, it had been made "navigable" by artificial
means. The court explained the effect of the handiwork of man in this
situation as follows:
SWhile in its original state the cove was, by
reason of its size and the shallowness of the water therein,
," manifestly not capable of navigation for useful public
Purposes, and the cove is not a part of the shore of the
navigable waters and the sound adjacent to the cove. This
being so the cove was the subject of private ownership which
included fishing privileges therein. The fact that a part of
.: the cove was made navigable by artificial means after it be-
-came private property, did not take away the right of the owner
-^ ; --o control the fishing privileges therein subject to law.
S So the court concluded that Mr. Watson retained the right to exclude
f .. Clement from fishing in the cove. The case stands for the pro-
position that a non-navigable, privately owned waterbody retains its
characteristics as such when it is converted into a navigable water-
S body by artificial means. Since the cove was still treated as a non-
,. navigable water body, the owner of property abutting on the waters
of the cove, but who did not own any of the underlying bottom land,
-' would have no riparian or other rights to the use of the cove and
S The Attorney General made a plunge into this subject in 1955.
Fla. Att'y Gen. Op. 055-157, [1-955-1956] Biennial Report of the
. ** Att'y Gen. 209. The Inter-American Center Authority, a public
corporation and state agency, was authorized as part of its
y operation to dig canals in connection with its port facilities.
.. The Authority requested the Attorney General's opinion as to the
effect of the building of such navigable canals--whether the
construction of an artificial navigable waterway would vest the
SS land lying thereunder in the state itself, as distinguished from
the building agency, and whether the public would gain a right to
use such canals constructed on private property. The Attorney
S General stated that a landowner has the right to excavate, entirely
within his own boundaries, and exclusively at his own expense, a
canal for purposes of navigation. To permit the public to use such
Sa canal, where no navigable waterway previously existed, would amount
:; to the taking of private property for public use without just compen-
a"' station, the Attorney General reasoned. He ruled that where waters
;i were not previously navigable, the public acquired no right to
navigate an artificial channel made by the owner of the underlying
Soil Likewise, such construction would not cause the bottom lands
S. to vest in the state. The Authority could go ahead and construct
i;- ~ its canals without worrying that the public or the state itself
would obtain any sort of rights. The opinion is consistent-with
the Watson case. A person who constructs an artificial waterbody
on his land, whether it be navigable or non-navigable, does not
thereby create any rights in other persons.
.A very brief Attorney General's opinion appeared in 1971. He
stated that an owner of upland upon which had been created an
artificial navigable body of water, extending from public navigable
waters, could still control fishing by the public in the said
artificial waterbody. Fla. Att'y Gen. Op. 071-168. This is the
exact same factual situation as in Clement v. Watson.
A recent and important decision, the implications of which are.
muddy, is Silver Blue Lake Apts., Inc. v. Silver Blue Lake Home Owners
Ass'n, Inc., 245 So.2d 609 (Fla. 1971), aff'q 225 So.2d 557 (3d DCA
Fla. 1969). At issue was the use of an eighty acre man-made artificial
lake. The facts are somewhat unclear, but I have concluded that this
is what happened: a certain Mr. Freeman owned a large parcel of land.
On it he excavated limerock and created a lake. Later some residential
lots bordering on the lake were sold. In order to deflate opposition,
to his proposal to rezone the remaining land he owned on the lake
for apartments, Mr. Freeman transferred the great bulk of the bottom
Island to an association made up of home owners on the lake. Under the
terms-of the deed to the bottom lands, use of the lake was restricted
to members of the Association. Mr. Freeman'sold his remaining-land
jwA &siiTmlangl1 portion of the bottom land he still owned to the
.appfl an, Apartments, Inc., which began construction of a large
apartment complex on the land. Apartments, Inc. itself was a member
of the Association, but few of its tenants were. A dispute arose
between the owners of homes on the lake and tenantsof Apartments,
SInc.- The homeowners claimed that use of the lake by tenants had
caused so much traffic and congestion on the lake that the homeowners
were in effect deprived of their rights to use the lake. The 3d DCA
ruled in favor of the homeowners and enjoined the apartment owner
from passing on its right to use the lake to tenants. Such trans-
mission of rights was found to be unreasonable. The court stated
that the owner could not multiply its right of use by the total
number of its tenants and pass the increase to the tenants. 225
So.2d 560. The Supreme Court did not get into this argument, but
S rather affirmed on other grounds. It held that the deed of most of
the bottom land to the Association, which deed contained the use
i. restriction, created an equitable servitude that was binding upon
-. Apartments, Inc. Neither the 3d DCA nor the majority in the Supreme
Court decision felt compelled to discuss what effect the fact that
an artificial lake was involved might have on the outcome of the
case. The implication is that it did not make any difference. It
is clear from the two opinions that the owners of bottom land of
a non-navigable artificial lake generally have the right to the
use of the entire surface of the lake. This is the same as if the
--... lake were natural.
At one point in its Silver Blue Lake opinion, the majority
.'.* In our view, as an abstract proposition, the right of owners
of a portion of the bed (of an artificial lake, which is
Found as a fact from the evidence to be a non-navigable lake,)
,to rent their rights to use of the water surface to tenants
of an apartment complex on the land including a portion of the
.-, lake bed, is only the right of lawful and reasonable use not
detrimental to other owners or lawful users; such use may be
held to be subordinate to valid deed restrictions, reserva-
tions, agreements or other title burdens.
245 So.2d at 612 (emphasis in the original). The emphasis in this
quotation that the lake involved here is non-navigable implies that
the result would be different were the lake navigable. Apparently,
what the court is implying is that if the lake were navigable, then
the tenants as well as the general public would have rights to use
the lake. This is not consistent with the Watson case or the
,- Attorney General's opinions referred to above, which had heldthat
-. even if it is navigable, an artificial waterbody is not automatically
open to public use. Whether the Supreme Court intended such a change
in the law is uncertain. I doubt they intended it. It is only
Justice Ervin, dissenting in the Silver Blue Lake case, who discusses
the possible effect of the artificial character of the lake involved
4.. therein. It is his opinion from the record in the case that, in light
of the ever expanding definition of a "navigable" waterbody, the
lake involved here is navigable. Under natural circumstances, the
public would then have rights to use the lake. He questions whether
the-fact that the lake is artificial would change that consequence
of navigability. He concludes that it would be unconscionable to
sanction the accrument of public rights in an artificially created
~~hawN.Amserwis.e navigable waterbody that had been developed bypra e
resources under a plan to limituse to a recognized non-public group.
Otherwise, he thought there would be a taking without just compensa-
tion. But if there had been considerable participation of the general
public in-the development and use of the waterbody or a lapse in or
abandonment of the original plan to exclusively limit the use of it,
he felt there could be a sufficient basis for recognition of public
rights in an artificially created waterbody. So his view is that
where there was no acquiescence in the use of the waterbody by the
general public and there was an intent to limit use of the waterbody,
then its navigability will not effect its private character or the
exclusive rights of the owner.
*k A 6 M. I I.
y. II. LAW IN OTHER JURISDICTIONS
: In regard to rights in artificial waterbodies, a commentator
states: "The law to be applied in such situations is certainly not
settled. The decisions which have been rendered by the courts are
not consistent." Note, Water Law in West Virginia, 66 W. Va. L. Rev.
From my research I have concluded that the general rule is to
treat artificial waterbodies, whether they be navigable or non-
navigable, as non-navigable. This makes ownership of bottom land
S the determinant of rights in the absence of special circumstances.
..r Oommentators have stated it as follows: "The general rule as
to artificial water bodies, including lakes, is that their beds may
S be used as if dry land, and that abutting landowners have no
riparian rights." R. Johnson and G. Morry, Filling and Building on
SSmall Lakes--Time for Judicial and Legislative Controls, 45 Wash. L.
-, Rev. 27, 29 n. 8. Professor Maloney et al. are in accord:
The ownership of a tract of land bordering on a navigable
natural waterbody entitled the owner to certain riparian rights.
This rule does not apply to artificial waterbodies; a landowner
': bordering on such a body is not entitled to riparian rights by
virtue of the fact that his land borders it.
F. Maloney, et al., supra, 24.4 at 63. This answers the
abstract question. // A
A11 f9 zcL 6-0O('6) 0 ,.- s y 6C 7ce&(, /& 3,A.2 3 254.2. /9^<).
But rights of use similar to those on natural lakes may be
obtained in various ways and under various legal theories. Some
of the theories that have been utilized to recognize in abutting
landowners what amounts to riparian rights are:
1. Reciprocal easements.
3. Actual grant of easement.
4. Equitable servitude.
5. Implied easement.
6. Where artificial waterbody has taken on characteristics
of natural waterbody or will be considered, because of
a seeming permanence as a waterbody.
See, e.g., Greisinqer v. Klinhardt, 9 S.W.2d 978 (Mo. 1928); Wilson
v. Owen, 261 S.W.2d 19 (Mo. 1953); R. Johnson & G. Morry, supra, at
29 nr 8; A. Evans, Riparian Rights in Artificial Lakes and Streams,
16 Mo. L. Rev. 93 (1951).
With this as the state of the law, there must,be a subjective,
,~~awPik^ niby-ease approach. I would be very hesitant to conclude in any
situation that a landowner abutting an artificial waterbody does not
have some sort of enforceable property right in the waterbody by
virtue of the position of his property.
; The first "example" posed in your memorandum I would answer as
follows: Based upon the Florida law discussed above, I would conclude
that Mr. X would have exclusive ownership and control of the waters
and bottom land in the lake or pond that he digs under the facts there
In regard to the second question of the memorandum, I would
answer thus: The general rule would not accord to these homeowners
any rights to use of the lake if they do not actually own any of the
bottom land, regardless of whether the lake is or is not navigable.
But, again, a court would probably be inclined to recognize some
sort of easement or something akin to riparian rights. Possible
grounds for such a ruling would include: affirmative easement
(Wilson v. Owen, 261 S.W.2d 19 (Mo. 1953)); estoppel; servitude
(Greisinger v. Klinhardt, 9 S.W.2d 978 (Mo. 1928)); etc.
A leading treatise states:
Rights may be acquired in an artificial condition
of'water in the same way that they can be acquired
in real estate generally. This may be by grant,
contract, express or implied, or by prescription.
3 H. Farnham, Law of Waters and Water Rights 820 at 2407.
I am attaching hereto the most extensive article I could find
on the subject: A. Evans, Riparian Rights in Artificial Lakes and
Streams, 16 Mo. L. Rev. 93 (1951).
.-. .% .
given, regardless of whether the part he digs out is considered
navigable or non-navigable. A court could hold, however, that after
a number of years the artificial waterbody has, by virtue of its
permanency and the mode in which it has been used and enjoyed, taken
on the characteristics of and will be treated as a natural waterbody.
See F. Maloney et al., supra, 24.4 at 63-64.
eaae get me the latest law on the rights of owners as they
elate to partially artificially constructed lakes or lagoons
.nmxt to other lakes or rivers. For example, if Mr. X digs out
20 acres adjacent to a navigable lake or river and the waters
-are connecting, are the rights of the owners of the property
an the artificial part of the lake or river any different from
those of the owners of property on the natural lake or river? .
.. Also, I would like to have the rights of owners as they relate .
%'to a completely artificially constructed body of water. For
i-emple, if Mr. Y digs out a low area of 40 acres and then sells
Sa.ts on the resulting lake, are the rights of these owners any
0. different from those on a 40 acre natural lake?