Property Rights Study Commission Report/Rights to Comsumptive Use of Ground Water

Material Information

Property Rights Study Commission Report/Rights to Comsumptive Use of Ground Water


Subjects / Keywords:
Riparian rights ( jstor )
Water rights ( jstor )
Taxation ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Jake Varn Collection - Property Rights Study Commission Report/Rights to Comsumptive Use of Ground Water (JDV Box 86)
General Note:
Box 22, Folder 6 ( Notes From Cases on Water Rights - 1975 ), Item 1
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

Source Institution:
Levin College of Law, University of Florida
Holding Location:
Levin College of Law, University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.


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March 26, 1975

To: Jake D. Varn

From: Roger D. Schwenke

Re: Property Rights Study Commission Report/
Rights to Comsumptive Use of Ground Water

Attached are my comments and/or suggestions to your
draft memorandum. By this point you may have already sub-
stantially revised it, or may have sent it on its way, so that
these comments are not particularly helpful. If not, maybe some
of them can prove beneficial. I must admit that at times I
tended to "Cutlerize" more than I am entitled to, but I did
try to indicate where points were not coming through that clearly
to me.

On the issue of tax assessment, I'd recommend that
it be noted as a problem area.

Unlike certain states (e.g. Alabama see Ala. Code
1958, Title 51, 21; Texas Rev. Civ. Stat. Ann. Art. 7146)
which define the term real property to include "all rights and
privileges belonging or in anywise pertaining tereto", Florida
192.001(12), Fla. Stat. defines real property merely to mean
"all land, buildings and all other improvements to land". The
problem, as expressed in the Treatise Waters and Water Rights
72.1, is thus -- confronted with such a decision, does the
riparian right fall sufficiently within the definition to permit
its independent assessment and taxation.

The author of that Treatise takes the position that
regardless of the limitation imposed through the definition
of riparian rights relative to use of the waters beyond the
water shed area, since the ownership of the riparian land gives
rise to the right, he argues that it is reasonable to conclude
that a definition of "real property" which includes "land"
without further elaboration is sufficient for tax purposes to
include riparian rights. Cases are cited from California (City
and County of San Francisco v. Alameda County, 5 Cal. 2d 243,
54 P. 2d 462 1936); Maine, Shawmut Mfg. Co. v. Town of Benton,
123 Me. 121, 122 A. 49 (1923), Minnesota and New Hampshire.

Memo to
Jake D. Varn (2) March 26, 1975

Florida Statutes previously provided, 192.61, that
riparian rights were not to be separately assessed, but instead
that the value of the rights to the abutting land should be
included in determining the assessed value of such land. In
1969 this section was renumbered as 193.141. However, the
following year the comprehensive taxation revision legislation,
Chapter 70-243, repealed the section and left in its place
certain unresolved issues:

1. Since 192.032 defines the situs of real property
taxation as the county in which it is located, if riparian
rights can now be assessed independently by reason of the
repeal of 192.61 [193.141], how should such rights be assessed
when they are transferred from one county to another?

2. At what point should the right be taxed? This
question has developed in several western prior appropriations
states in the context of whether there is an item of value
where application has been commenced to declare prior appropri-
ation. Should the same distinction be drawn between someone
exercising his rights as contracted to an adjacent land owner
not yet requiring or exercising his right to the use of ground

3. Presently, taxation and assessment statutes and
regulations do not appear to resolve a possible situation where
riparian rights are being assessed separate from the riparian
lands. In California [Spring Valley Water Co. v. Alameda County,
24 Cal. App. 278, 141 P. 38 (1914)] the court concluded that
separate assessment of riparian rights was erroneous because
there had been no showing that the riparian lands were assessed
without the water rights.

4. If water rights are to be conveyed, should not
Florida adopt a specific procedure to require a separate
assessment? This is the statutory requirement in Vermont
[Vermont Stat. Ann. 1959, Title 32, 3605].