FRANK E. MALONEY
SHELDON J. PLAGER
RICHARD C. AUSNESS
BRAM D.E. CANTER
HOLLAND LAW CENTER
UNIVERSITY OF FLORIDA
UNIVERSITY OF FLORIDA
FLORIDA WATER LAW
Frank E. Maloney
Dean Emeritus and Professor of Law
University of Florida, Holland Law Center
Sheldon J. Plager
Dean and Professor of Law
University of Illinois
Richard C. Ausness
Professor of Law
University of Kentucky
Bram D. E. Canter
Director, Water Law Program
Center for Governmental Responsibility
University of Florida, Holland Law Center
Water. Law Program
Center for Governmental Responsibility
Holland Law Center
University of Florida
Gainesville, Florida 32611
Water Resources Research Center
University of Florida
OWRT Project No. B-030-FLA
Matching Grant Agreement No.
Publication No. 50
On April 23, 1980, Dean Frank Edward Maloney passed
away at his home in Gainesville, Florida. The news of
his sudden death caused a somber quiet to fall upon the
University of Florida Law School, where classes were
canceled in tribute to a beloved figure. The Florida
Legislature immediately passed a concurrent resolution
expressing its deep regret at the loss of one of the
State's distinguished citizens.
Dean Maloney's achievements are too numerous to list
in detail. He was a recognized authority on water law
and environmental law for almost thirty years. His work
in these fields included major authorship of A Model Water
Code, on which the Florida Water Resources Act of 1972 was
largely based, and scores of law review articles and
Dean Maloney became Dean of the University of Florida
Law School in 1958, and served in that capacity with dis-
tinction until stepping down in 1970 to return to full-time
He is remembered for his considerable competence and
quiet strength, his quick humor and his lion's share of
generosity. Dean Maloney had a host of friends in the
student body, faculty, alumni, Gainesville community,
State and Nation. His absence will be felt for a long time.
Numerous projects undertaken by Dean Maloney were
sorely affected by his death. The preparation of this
manuscript, however, was close to completion. The text
before you is substantially as he last reviewed it. He
had worked toward its publication for over two years and
regarded this work as one of his most important endeavors.
In memory of a respected colleague and close friend, the
authors dedicate this book to Dean Frank E. Maloney.
The authors would like to acknowledge
the substantial assistance of Stan Niego, Lynn
Capehart, Richard Hamann, Peter Baker, Clinton
A. Thomas and Lindy Phillips in the research
and writing of this book.
The publication of this report was made
possible by a loan from the Law Center Associa-
The preparation of this report was supported
in part by funds provided by the United States
Department of the Interior, Office of Water Research
and Technology as authorized under the Water Resources
Research Act of 1964 as amended.
TABLE OF CONTENTS
CHAPTER I COMMON LAW WATER RIGHTS 5
A. Water Law and the Hydrologic Cycle 5
B. Contained Surface Water 6
1. The Prior Appropriation System 7
2. The Riparian System 9
a. Consumptive Use Rules 10
i. The Natural Flow Doctrine 10
ii. The Reasonable Use Rule 12
b. Place-of-Use Restriction 17
i. Definitions of Riparian Land 17
ii. The Watershed Limitation 19
iii. Effect of Nonriparian Uses 20
iv. Transfer of Water Rights 21
v. Use by Municipalities 22
c. Prescriptive Rights 22
d. Riparian Rights in Florida 24
C. Ground Water 27
1. Hydrology 27
2. Geology The Aquifers in Florida 30
3. Ground Water Problems 31
a. Interference Between Wells 32
b. Overdraft of the Water-Bearing Bed or Aquifer 33
c. Contamination 34
d. Salt-Water Intrusion 35
4. Legal Classification of Ground Water
a. Underground Streams and Percolating
b. Presumption That Ground Water Is Perco-
c. Evidence Allowable to Prove an Under-
d. Significance of the Classification
5. Underground Streams
6. Percolating Waters
a. The Absolute Ownership Doctrine
b. The American Rule
c. The Correlative Rights Doctrine
d. The Restatement of Torts Approach
D. An Evaluation of Common Law Water Rights
CHAPTER II STATE, REGIONAL AND LOCAL WATER RESOURCE
B. The Florida Environmental Reorganization Act
C. Department of Environmental Regulation
1. Division of Environmental Permitting
2. Division of Environmental Programs
3. Environmental Regulation Commission
D. Department of Natural Resources
1. Division of Administrative Services
2. Division of Marine Resources
3. Division of Recreation and Parks 125
4. Division of Resource Management 126
5. Division of Law Enforcement 127
6. Division of State Lands 127
E. Board of Trustees of the Internal Improvement
Trust Fund 130
F. Game and Fresh Water Fish Commission 134
G. Executive Office of the Governor 139
H. Water Management Destricts 141
I. Local Government Regulation 148
J. Single Purpose Districts 157
1. Drainage Districts 157
2. Soil and Water Conservation Districts 164
3. Beach and Shore Preservation Districts 166
CHAPTER III STATE REGULATION OF CONSUMPTIVES USES 191
A. Water Use Permit Systems in the Eastern United
1. Exempted Uses 192
2. Water Shortages 192
3. Comprehensive Planning 193
4. Protection of Instream Uses 193
5. Reallocation and Transfers of Water Rights 194
6. State-by-State Description 196
a. Model Water Use Act 196
b. Iowa 197
c. Georgia 198
i. Other States
B. The Florida Water Resources Act of 1972
a. Historical Background
b. Administrative Framework
i. The Department of Environmental
ii. Water Management Districts
2. The State Water Plan
a. The Statutory Mandate
b. The History of Implementation
c. The Failure of State Water Use Planning
d. The Future of State Water Use Planning
3. Water Use Permits
b. The Reasonable-Beneficial Use Standard
i. The Background of the Reasonable
Beneficial Use Standard
ii. Summary of Reasonable Use, Beneficial
Use, and Reasonable Beneficial Use
c. Recognition of Environmental Considerations
d. Implementation by the Water Management
i. Fully Implemented Consumptive Use
ii. Partially Implemented Consumptive
Use Permit Systems
e. The Water Shortage Plan
i. The Florida Water Resources Act
ii. Water Shortage Planning at the
iii. Review of Water Shortage Plans
1. Permits for the Management and Storage of
a. South Florida Water Management District
b. Southwest Florida Water Management
c. St. Johns River Water Management District
C. The Vested Rights Problem
1. The Taking Issue
2. The Taking Issue in Florida
3. Cases from the Western States
4. Vested Rights and the Florida Water Resources
CHAPTER IV THE LAW AND ADMINISTRATION OF
POLLUTION CONTROL IN FLORIDA
A. Common Law Development
1. The Reasonable Use Rule
c. Parties Plaintiff 342
d. Parties Defendant 342
3. Defenses 343
a. Statute of Limitations 344
b. Prescription 344
c. Agreement 346
d. Laches 346
e. Primary Jurisdiction; Failure to Exhaust
Administrative Remedies 346
f. Constitutional or Legislative Authoriza-
tion of Pollution 349
4. The Inadequacies of the Common Law Remedies 351
B. Federal Regulation of Water Quality 352
1. Introduction 352
2. Development of the Federal Law of Pollution
3. The 1972 Amendments to the Federal Water
Pollution Control Act 356
a. Uniform, National Effluent Limitations 356
b. The National Pollutant Discharge
Elimination System 360
c. Areawide Waste Treatment Planning 361
d. Demonstration Grants and Other Assistance 364
4. Legal Challenges to the 1972 Amendments 365
5. The 1977 Amendments 368
a. Conventional, Unconventional, and Toxic
b. Variances and Extended Compliance
c. Alternative Waste Treatment Processes 373
d. Control of Non-Point Source Pollutants 375
e. Additional Provisions
C. State and Local Regulation of Water Quality
1. The Florida Air and Water Pollution Control
a. Powers and Duties of the Department;
b. Implementation of DER Permitting
c. Domestic and Industrial Waste Treatment
e. DER Enforcement Remedies
f. Hearings and Appeals
g. Local Pollution Control
h. Assistance to Local Governments
i. The Florida Industrial Siting Act
2. Water Quality Planning in Florida
3. NPDES Authority in Florida
4. Classification of Florida Waters
5. Water Quality Criteria
a. Exceptions and Exemptions From the Water
6. Zones of Mixing for Surface Waters
7. Zones of Discharge for Groundwaters
D. Oil Spill Prevention and Control
2. The Federal Background
3. The Florida Pollutant Spill Prevention and
a. Coastal Protection Trust Fund 419
b. Prevention of Discharges 420
c. Handling Discharges 421
d. Local Government Control 421
e. Penalties 422
f. Constitutionality 422
E. Regulation of Solid Waste Disposal Facilities 424
1. Introduction 424
2. Federal Regulation of Solid Wastes 425
3. Regulation of Solid Wastes in Florida 428
F. Protection of Public Drinking Water Supplies 430
1. Introduction 430
2. The Federal Safe Drinking Water Act 431
3. The Florida Safe Drinking Water Act 436
a. State and Local Administration 436
b. Permitting and Operating Requirements 438
c. Variances and Exemptions 440
d. Public Notice Requirements 442
e. Emergency Powers 443
G. Regulation of Dredging and Filling Activities 443
1. Introduction 443
2. Federal Regulation of Dredging and Filling
a. Jurisdiction 447
b. Permitting Requirements and Applicable
c. Hearings and Appeals 456
3. Regulation of Dredging and Filling Activities
in Florida 457
a. Development of Dredge and Fill Regulation 457
b. Jurisdiction to Control Dredging and
Filling Activities 462
c. Local Control Over Dredging and Filling
d. Permitting Requirements and Applicable
e. Constitutionality 472
f. Presumption and Burden of Proof 476
H. Standing of Private Citizens to Bring Suit to
Abate Water Pollution 478
1. Standing Under the Common Law 478
2. The Florida Environmental Protection Act 481
3. Chapter 823, Public Nuisances 485
4. The Federal Water Pollution Control Act 488
CHAPTER V DIFFUSED SURFACE WATER 586
A. Distinguishing Diffused Surface Water from
Other Forms 587
B. Rules Governing Disposal of Diffused Surface
1. The Civil Law Rule 590
2. The Common Enemy Rule 592
3. The Reasonable Use Rule 594
C. Application of the Rules 596
1. The Upper Owner 597
a. Augmenting Natural Drainage 598
b. Diversion 599
c. Collection and Discharge 601
d. Raising the Level of the Land 602
e. Rendering the Surface Impervious 605
f. Drainage into a Natural Watercourse 606
2. The Lower Owner 610
a. Damming Back 610
b. Raising the Level of the Land 612
D. The Florida Position 613
E. Remedies 618
1. Trespass to Land 619
2. Negligence 620
3. Nuisance 620
4. Injunction 621
5. Damages 622
6. Defenses 623
a. Contributory Negligence 623
b. Assumption of Risk 624
c. Avoidable Consequences 625
d. Comparative Negligence 626
e. Self-Help 626
f. Statutes of Limitation 629
g. Prescription 630
h. Priority of Occupation 632
7. Inverse Condemnation 633
F. Government Programs to Deal with Surface Water
CHAPTER VI SUBMERGED LANDS AND WATER BOUNDARIES 674
A. Introduction 674
B. Basic Considerations 674
1. General Historical Development 674
2. Sources of Titles to Submerged Lands in
3. Spanish Grants Title to Water Bottoms
Under the Civil Law 677
a. The Navigability Concept Under Civil
b. Public Water Rights Under Civil Law 679
i. Seas and Bays 679
ii. Public Rivers 679
iii. Lakes 679
c. Status of Spanish Grants Today 680
4. Sovereignty Lands State Acquisition of
Title from the Federal Government 683
C. Navigability Under Federal Law 684
1. Common Law Roots 684
2. The Development of the Concept of Naviga-
bility in America 685
3. Navigability In Fact 687
D. The Choice of Law Issue 690
E. Navigability Under Florida Law 696
1. Development of the Florida Bed Title Test 696
2. Relationship of the Federal and Florida Bed
Title Tests 701
3. Public Use vs Public Title 703
F. Fresh Water Boundaries The Ordinary High Water
G. Tidal Boundaries 713
1. Tides 713
2. The Mean High Water Line 718
H. Ambulatory Boundaries 726
1. Accretion 727
2. Artificial Accretion 729
a. Artificial Accretion Caused by the
Upland Owner 730
b. Artificial Accretion Caused by Third
3. Erosion Control by Upland Owner 733
Many changes have taken place in Florida since the predecessor
to this book, Water Law and Administration.: The Florida Experience,
was published in 1968. Since that time the population of Florida
has increased from 5 million to almost 8 million. Many of these
newcomers have settled in water deficient areas of south Florida
or in the environmentally fragile regions of southwest Florida.
Florida's water law has also changed significantly in the past
12 years. The 1972 Florida Water Resources Act, the 1972 Florida
Land and Water Management Act and the 1974 Coastal Mapping Act
are examples of new legislation at the state level. In addition,
the National Environmental Policy Act of 1969, the Federal Water
Pollution Control Act of 1972 and the Clean Water Act of 1977
illustrate how federal legislation has affected Florida's water
This study will attempt to make a comprehensive examination
of Florida water law, including both consumptive uses of water
and land use activities that affect the aquatic environment.
The first chapter is concerned with common-law water rights.
The reasonable use rule, by which surface water is allocated in
the eastern states, is discussed in some detail. The various
doctrines which govern the allocation of percolating ground water
are also considered. Chapter I also takes a look at the problem
of land subsidence caused by ground water pumping.
Chapter II is concerned with the multitude of state and
local agencies which are responsible for the management of
Florida's water resources. This chapter begins with an analysis
of the Florida Environmental Reorganization Act of 1975. The
structure and powers of the Department of Environmental Regulation
and the Department of Natural Resources are delineated. Other
state agencies such as the Board of Trustees of the Internal
Improvement Trust Fund, the Game and Fresh Water Fish Commission,
and the Executive Office of the Governor are also discussed. At
the local level, chapter II focuses on the various water manage-
ment districts, although some attention is also given to the
role of drainage districts, soil and water conservation districts,
and beach and shore preservation districts.
Chapter III surveys the water allocation systems of the
eastern United States and describes the statutory permit systems
that have been established in many areas of the country. The
primary emphasis, however, is on the Florida Water Resources Act
of 1972. Some of the act's highlights, which are discussed in
this chapter, are the State Water Plan, the consumptive use per-
mit system, the reasonable-beneficial use standard, water shortage
planning, and the regulatory framework for dams and impoundments.
Finally, this chapter will consider the constitutional problems
that may arise when existing water uses are subjected to regu-
lation under the 1972 act.
In chapter IV the nature of common-law remedies against
water pollution is reviewed. The bulk of this chapter, however,
deals with the Federal Water Pollution Control Act of 1972 and
the 1977 amendments to this legislation. The role of state and
local government in the regulation of water quality is also
described. In addition, chapter IV considers a number of specific
water quality problems. One of these is oil spill prevention and
control; chapter IV gives considerable attention to the Florida
Pollutant Spill Prevention and Control Act. Another area is the
regulation of solid waste disposal facilities. Protection of
public drinking water supplies is also covered in this chapter;
both the Federal Safe Drinking Water Act and the Florida Safe
Drinking Water Act are analyzed. Finally, regulation of dredge
and fill activities at both the state are federal level is
Diffused surface water is the subject of the next chapter.
Each of the legal doctrines which govern the disposal of diffused
surface water, the civil law rule, the common enemy rule, and the
reasonable use rule, is examined. Chapter V also delineates the
various remedies and defenses to actions which cause flooding
from diffused surface water. This section concludes with a dis-
cussion of inverse condemnation and a brief survey of government
programs which are intended to relieve surface water runoff
The final chapter is concerned with submerged lands and
water boundaries. A central concept is navigability and chapter
VI analyzes both the federal and the Florida law of navigability
and points out where each is applicable. The chapter also dis-
cusses the ordinary high water mark and its function in the de-
termination of fresh water boundaries. Likewise, the concept of
the mean high water line and its use in the demarcation of
boundaries in tideland areas is examined. Finally, chapter VI
considers the problem of ambulatory boundaries and the doctrines
of accretion, reliction and erosion.
COMMON LAW WATER RIGHTS
A. Water Law and the Hydrologic Cycle.
Scientists have long recognized that water moves in
what is known as the hydrologic cycle, the recurring pro-
cess through which water passes from atmospheric water
vapor into liquid and solid form as precipitation, thence
along or into the ground, finally returning to atmo-
spheric water vapor by evaporation and transpiration.
The law, however, has classified water as if the differ-
ent physical stages of water were separate and distinct,
rather than interrelated parts of the hydrologic cycle.
As stated in an early Florida case, this classification
has generally included the following four classes of
(1) [S]urface streams which flow in a
permanent, distinct, and well-defined
channel from the lands of one owner to
those of another; (2) surface waters,
however originating, which, without
any distinct or well-defined channel,
by attraction, gravitation, or other-
wise, are shed and pass from the
lands of one proprietor to those of
another; (3) subterranean streams
which flow in a permanent, distinct,
and well-defined channel from the
lands of one to those of another pro-
prietor; (4) subsurface waters which,
without any permanent, distinct, or
definite channel, percolate in veins
or filter from the lands of one owner
to those of another.
These are the familiar classifications of what are com-
monly known as watercourses, diffused surface waters, dis-
tinct underground streams, and percolating ground water.
The hydrologist is quick to point out that these classes
are not distinct, but closely interrelated:
The legal classes of water, as listed
above, are now known not to be separate
and distinct, but to be interrelated
and interdependent. The minimum flow
of water in watercourses comes chiefly
from ground water, whether from "de-
fined underground streams" or "per-
colating" water. The maximum flow of
water in watercourses also comes in
part from ground water, but is likely
to include a large proportion of water
that was temporarily "diffused surface
water." "Diffused surface waters" may
include water from precipitation which
has not completed the process of in-
filtrating into the ground or which
cannot enter the ground because of
impermeability of the surface layer,
or because the ground is temporarily
full; overland flows which may either
seep into the ground elsewhere or
enter a watercourse or lake or pond;
the discharge from ground water res-
ervoirs at springs or seeps; water in
sloughs or escaped floodwaters in
"watercourses" that have been too nar-
rowly limited in their definition; and
marshes and bogs formed by ground water
where the water table rises to the
Nevertheless, we will observe the traditional classi-
fications in the following discussion of common-law
water rights while at the same time remaining aware
that these legal categories often obscure the under-
lying hydrologic relationships.
B. Contained Surface Water.
Within a country as large and diverse as the United
States, with tremendous variations in the quantities of
available fresh water, it is not surprising that differ-
ent systems of regulating water use should have developed.
While the United States, viewed in its entirety, has a
bountiful supply of water, only the eastern and particu-
larly the southeastern United States, including Florida,
is normally blessed with an ample annual rainfall. The
western United States, especially that part of the coun-
try west of the Mississippi River, is much more arid,
with the exception of a relatively narrow band along
the northwest coast, including the western edges of the
states of Washington and Oregon, and parts of Northern
As the United States developed, the more humid
East found variations of what became known as the
"riparian" system of water law suitable to its earlier
needs, whereas the arid West adopted the system of
water law known as prior appropriation.
1. The Prior Appropriation System.
The prior appropriation system is the primary mech-
anism for water allocation in the western United States.4
Priority and beneficial use are its fundamental charac-
teristics. The prior appropriation doctrine provides
that the appropriator is entitled to satisfy his water
needs before a subsequent appropriator may divert water
from the stream.5 The subsequent or junior appropriator
also possesses a legally protected water right, but it
is subordinate to that of the senior appropriator.
Under prior appropriation, water rights are derived
from beneficial use of the water rather than from land
ownership.7 Not only must the use be a beneficial one,
but the methods of diverting the water, conveying it to
the place of use, and applying it to the land or machin-
ery for which it is appropriated must also be efficient
under the circumstances. Appropriations are made for
a definite quantity of water, usually expressed in
cubic feet per second for direct diversion or in acre-
feet for reservoir storage. Diversions are often
limited to specific times of the day or week. More-
over, administrative procedures for appropriating water
invariably require the applicant to designate the pro-
posed place of use for the water he desires to
appropriate.2 The place of use may be on nonripar-
In the West, water rights are perpetual in dura-
tion, although they may be lost or abandoned through
nonuse. However, several states have enacted statutes
giving certain uses preferred status for purposes of al-
locating water during times of shortage or for choosing
between simultaneous applications. In addition, some
states give these preferred uses condemnation powers. 1
Nowadays, appropriative rights usually operate within a
comprehensive statutory and administrative framework.
In most jurisdictions permits are issued by a state ad-
ministrative agency pursuant to some form of adjudica-
tory process. The agency often has the power to deny or
modify permit applications in order to protect senior ap-
propriators or the public interest.17
Despite some problems with inefficient use, over-
appropriation, and lack of transferability, the prior
appropriation system has worked relatively well in the
West. This has lead some experts to urge its adoption
in the East. Since World War II at least nine eastern
18 19 20
states including Arkansas,8 Georgia, Florida,
21 22 23
Michigan, Mississippi, North Carolina, South
Carolina, Wisconsin, and, most recently, West
Virginia,6 have considered the desirability of switch-
ing to an appropriative type system creating vested
water rights, but only Mississippi has adopted such an
approach; the others have all rejected it.28 Never-
theless, many eastern states, including Florida, have
modified the riparian system by adopting statutory
water allocation schemes which contain a number of prior
2. The Riparian System.
The riparian system of water law which developed in
the states east of the Mississippi River, paralleled the
development of the common law of England. It is a
system of water rights based on ownership of land abutt-
ing on surface watercourses, including both lakes and
streams. The owners of such land are referred to as
riparian owners. It continues to apply in those areas
of Florida which have not implemented the consumptive
use permit system authorized by the Florida Water Re-
sources Act of 1972.
a. Consumptive Use Rules.
There are two doctrines that govern consumptive
rights to water under the riparian system, the natural
flow doctrine and the reasonable use rule.
i. The Natural Flow Doctrine.
Under the natural flow doctrine, each riparian pro-
prietor on a watercourse is entitled to have the stream
flow through his land in its natural condition, not per-
ceptibly retarded, diminished or polluted by others.33
This doctrine is based on the principle that the law
should follow nature and that each proprietor on a
stream should be entitled to have the stream continue to
flow in its natural state through his land.
Consumptive uses are not entirely prohibited by the
rule, but a distinction is made between "natural" and
"artificial" wants or uses. Natural uses are those
necessary to sustain life and include water for bathing,
drinking, household purposes, and watering animals.
The natural flow doctrine allows a riparian proprietor
to use as much water as he needs for his domestic or
natural uses even if this depletes the entire stream-
Artificial uses are those which increase man's com-
fort and prosperity and include irrigation, manufactur-
ing, power generation, mining operations, and large-
scale stock watering.38 Riparian landowners may divert
water for artificial uses as long as there is no
material interference with the natural flow of the water-
course, but a nondomestic use which noticeably affects
the natural condition of the stream creates a cause of
action for a downstream owner even though he is not
using the stream and suffers no actual damage. The
plaintiff is deemed to be injured by the change in the
natural flow or condition of the stream and may obtain
nominal damages or injunctive relief.0 In fact, under
the natural flow doctrine, the downstream owner is may
be forced to institute an action in order to protect his
rights against the acquisition of a prescriptive right
by an upper riparian user even though the diversion is
harmless under the existing circumstances.
In the early days of the Industrial Revolution,
when many mills and factories were powered by water,
the natural flow doctrine ensured that the water passed
down from one mill dam to the next. Under modern con-
ditions, however, the natural flow doctrine has little
utility. It prohibits many beneficial, nonharmful uses
simply because they materially diminish the natural
flow of the water. The natural flow doctrine also per-
mits a riparian proprietor to play "dog in the manager;"
that is, he does not use the water himself but deprives
the upstream owners of its use as well. Fortunately,
only four or five states still adhere to the natural
ii. The Reasonable Use Rule.
The reasonable use rule is now the majority posi-
tion, at least in the eastern United States. The reason-
able use rule and the natural flow doctrine reflect
widely divergent attitudes about man's relation to a
watercourse: The natural flow doctrine emphasizes the
status quo of nature, whereas the reasonable use rule
seeks to promote the fullest beneficial use of streams
by adjacent riparian owners. Under the reasonable use
rule, each riparian proprietor may use the water for any
beneficial purpose, provided that the intended use is
reasonable with respect to the needs of other proprietors
on the stream and does not unreasonably interfere with
their legitimate water uses. Of course, the mere fact
of benefit to the user does not establish the reason-
ableness of the use. Moreover, neither the priority
of use nor the extent of riparian frontage or riparian
land are generally considered in determining reason-
ableness. Although riparian rights are regarded as
equal or correlative, each riparian user is not neces-
sarily entitled to a proportionate share of the avail-
able water. Indeed, where the water supply cannot
satisfy the needs of all riparian users, some uses,
otherwise beneficial, may be deemed unreasonable under
the circumstances and prohibited.4
The determination of the reasonableness of a use
is a question of fact and must be resolved on a case-by-
case basis. The Restatement (Second) of Torts has
identified nine factors which courts have taken into
consideration in determining whether a use is a
"reasonable use." These are: (1) the purpose of
the respective uses; (2) the suitability of the uses
to the water course or lake; (3) the economic value
of the uses; (4) the social value of the uses; (5) the
extent and amount of the harm caused; (6) the prac-
ticality of avoiding the harm caused; (7) the prac-
ticality of adjusting the quantity of the water used
by each proprietor; (8) the protection of existing
values of land, investments and enterprises; and,
(9) the burden of requiring the users causing the harm
to bear the loss.
Whether a use is reasonable depends in part upon
the purpose of that use. The Restatement (Second) of
Torts notes, "A reasonable use must be one made for a
beneficial purpose that fullfills a lawful need or de-
sire of man."5 As in the case of the natural flow
doctrine, courts examining the purpose of consumptive
use have sometimes distinguished between natural and
At common law, all uses which are not natural uses
are considered artificial uses and have no preferential
status.53 A wide variety of artificial uses, however,
are potentially "reasonable" uses.54 Use of water for
the purpose of irrigation has been considered both reason-
able and beneficial. Other artificial but reasonable
uses include use of water for fishing, swimming, rec-
reaction 5 and manufacturing.5
Many courts have recognized the suitability of the
watercourse as a factor in determining the reasonableness
of the use. Suitability refers to the reasonableness of
a use with respect to the size and character of a water-
course. Unreasonable uses may consume more water than
the stream normally delivers or may impair recreational
and environmental values. A new use may not be compat-
ible with the preexisting pattern of uses.59
Whether a use is reasonable often hinges on its util-
ity and value to the user, measured in economic terms.60
Economic value may be evident in the productivity of the
use of water in irrigation or manufacturing. Economic
value may also arise from the recreational or scenic uses
Social values, or the public interest, have weighed
heavily as a factor where considerations of public health
and welfare were at stake. The adverse impact on public
welfare of an otherwise reasonable private use may out-
weigh any economic benefit produced by the use. On the
other hand, a use which benefits the public as well as
the water user will have social value as well as private
economic value. Courts have held that the public good
is advanced by such uses as salinity control, water sup-
ply or sewage disposal.63
Extent of Harm
Interference with a use may range from slight incon-
venience to total destruction. Whether the interference
is reasonable requires an examination of the value of
the impeded use. If the harm suffered is insubstantial,
a court could find the use to be reasonable.64 Harm has
been found to be substantial and unreasonable, however,
where an upper proprietor attempts to reserve all of the
water for his exclusive use.
To allow as many water uses as possible, courts
have considered whether it is practical to avoid harm
either by adjusting the manner of water use or by requir-
ing use of another water source. Efficiency and cost of
adjustment to each riparian are weighed in the balance.
A use which is unnecessarily wasteful or inefficient may
be declared unreasonable if a change in the method of
use would have avoided the harm to other riparians with-
out substantial reduction in profitableness. In contrast,
an otherwise reasonable use would be allowed to continue
where an adjustment would be prohibitively costly or
would render the use impractical.66
Adjusting the Quantity
The practicality of adjusting the quantity of water
used by each riparian has been another factor weighed by
the courts. Where a riparian is using more water than
is needed for his purpose, the entire use need not be
deemed unreasonable. Rather, a reduced, reasonable quan-
tity may be protected.67 Similarly, courts have sometimes
divided the available water among riparians according to
their respective need.68 The question of adjusting the
quantity between users may become critical in times of
Protection of Existing Values
According to traditional riparian doctrine, priority
of use gives no superior rights in a stream.70 Thus, pri-
ority is immaterial. A few courts, however, have held
unreasonable a new use which destroys the value of pre-
existing uses and investments in land and facilities.
Protection of existing values is interrelated with con-
sideration of the social and economic value of a use.
Burden of Loss (Compensation)
The final factor requiring the harmful use to bear
the burden of loss is grounded in public policy. The
United States Supreme Court has said that "later uses
with superior economic resources should not be allowed
to impose costs upon smaller water users that are be-
yond their economic capacity.74 Allocation of the eco-
nomic burden requires consideration of whether
compensation should be paid by a new user when the deci-
sion to supplant an existing use is made. Again, the
social and economic value factors are interwoven with
the compensation factor. A new use has usually been
viewed as unreasonable where it caused substantial, un-
avoidable harm to an existing, socially and economi-
cally valuable use and where the new user was able but
unwilling to compensate for the harm.75
b. Place-of-Use Restrictions
Under both the natural flow and reasonable use
theories, water rights are based on ownership of ripar-
ian land, a principle which prevents nonriparian land-
owners from using watercourses and which has led to
other use restrictions as well.
(i). Definitions of Riparian Land
Since surface water may be used only on "riparian"
land, 76 the courts have developed several tests to
determine whether a particular tract is riparian or not.
Perhaps the most restrictive is the "source of title"
test, under which riparian rights are limited to the
smallest parcel held under one title in a chain of
title leading to the present owner. The size of a
riparian tract cannot be increased by the purchase of
contiguous nonriparian land,78 and if the back portion
of a riparian tract is sold it loses its riparian
character.79 Moreover, the subsequent reuniting of a
severed tract with the abutting tract will not
re-establish its riparian status. Thus, a riparian
tract can be decreased but never increased in those ju-
risdictions which follow the source of title rule.
This rule, which originated in California, tends to re-
strict available surface water supplies to a small group
of riparian owners and has been largely confined to the
western states.82 The rule supports the western policy
of limiting riparian rights as much as possible in
order to provide more water for appropriators, but it
seems inappropriate for eastern states where more water
The more inclusive "unity of title" rule provides
that any tracts contiguous to the abutting tract are
riparian, if held in common ownership, regardless of
when they were acquired.83 This approach permits an in-
crease in the size of a riparian parcel by the purchase
of contiguous land even though the added land had been
nonriparian ever since its transfer from governmental
to private ownership. Given the trend toward larger
farms and landholdings in this country, application of
the unity of title theory will result in a continually
expanding quantity of riparian land. This rule has sup-
port in both eastern and western jurisdictions.
The unity of title rule appears to be a better ap-
proach for an eastern jurisdiction than the source of
title test. Often a riparian owner can use water on
land added to his riparian tract land without
unreasonably curtailing the amount of water available for
other riparian owners. However, the failure of the unity
of title rule to impose any restriction on the amount of
added land which can become riparian when acquired by
one riparian owner may adversely affect other riparian
proprietors. Accordingly, some courts have declared
that the amount of riparian land claimed under the unity
of title rule must be reasonable.8 Under this corol-
lary, the distance of the land from the watercourse is
taken into account in deciding the reasonableness of
the particular water use.86 Arguably, this affords
other riparians some protection against monopolization
of water by one riparian owner.
(ii). The Watershed Limitation
The concept of riparian land is further restricted
in some states by the watershed limitation, which pro-
vides that any part of a tract of land which lies out-
side the watershed of a body of water is not riparian to
it even though the tract itself borders on a natural
watercourse and is otherwise riparian.87 This water-
shed limitation is followed in five western states and
a few eastern states.
The watershed limitation is based on the assumption
that land beyond the watershed is outside the boundaries
established by nature for riparian ownership and that
water used on land within the watershed will eventually
return to the parent body of water. If water is
withdrawn from one watershed and drained into another,
downstream owners along the first watercourse would
be damaged by dimunition of the stream's flow, while
those along the second watercourse might be injured
by the effects of an excessive stream flow. This
allows a riparian owner to use water on his land to
the maximum extent while at the same time protecting
downstream owners, and protects riparians who are not
currently exercising their riparian rights by insuring
that water will be available if needed in the future.
Nevertheless, many commentators favor relaxation
or abolition of the watershed rule. In the East,
this restriction often unduly limits water use and
encourages waste of the resource. At present, few
eastern states have expressly adopted the watershed
rule, two have rejected it, and the rest have not
yet taken a position.
(iii). Effect of Nonriparian Uses
A nonriparian use is one in which water is diverted
onto nonriparian land. Land which lies outside of a
stream's watershed is also deemed nonriparian in those
states which adhere to the watershed rule. Thus, both
diversions by a nonriparian landowners and use of water
by a riparian owners on nonriparian land are considered
a nonriparian uses.
Nonriparian uses, however, are not always prohibited.
According to one view, such uses are wrongful per se and
riparian owners may obtain appropriate judicial relief
even though they have suffered no actual damage. In
states which follow the reasonable use rule, however, a
plaintiff must usually prove actual damage before he can
enjoin a nonriparian use. A few states permit non-
riparian uses even though they cause harm to downstream
riparian owners; nonriparian use is simply one factor
that is considered in determining whether the use is
reasonable in accordance with the requirements of the
reasonable use rule.
(iv). Transfer of Water Rights
In most states riparian rights are not transferable
apart from the riparian land to which they are incident,
but a few jurisdictions have allowed severance of such
rights. In such cases the right of the nonriparian
grantee is derivative, and the riparian owner cannot
convey a greater right than he has. Moreover, while
the right of the nonriparian grantee is effective
against his riparian grantor, it is usually inferior
to the rights of other riparians.
(v). Use By Municipalities
In theory, a municipality cannot divert water for
purposes of public water supply even where it owns riparian
property. Actually, courts often refuse to prevent
municipal water utilities drawing from watercourses and
deny relief on the basis of failure to show damages
estoppel or latches, or the existence of prescriptive
right on behalf of the municipality. A few states
have expressly recognized riparian rights for munici-
palities.13 Of course, municipalities normally have
the power to acquire water rights by eminent domain, and
once water rights are acquired, the municipality may sell
water to nonriparians and is not bound by any of the re-
strictions of the riparian doctrine.
(c). Prescriptive Rights
Most riparian jurisdictions allow both riparian and
nonriparian owners to acquire prescriptive rights to par-
ticular water uses. A prescriptive right constitutes
a servitude against the ownership adversely affected,
and thus amounts to an uncompensated transfer of rights
from the adversely affected riparians to the adverse user.
Prescription, like adverse possession, rests on the theory
that aggrieved parties should seek judicial relief within
a reasonable time or be forever barred from a remedy.
In order to ripen into a prescriptive right, the use
must be adverse, notorious, continuous and uninterrupted,
and be made under a claim of right or title. To establish
a right by prescription the use must be maintained in a
manner hostile to the right of the riparian proprietor
against whom it is claimed. An act is hostile when
it is inconsistent with the true owner's rights of
ownership. Thus, a licensed or permissive use can
never give rise to a prescriptive right because such
uses are not hostile to the titleholder.
The use must be visible, open and notorious so that
the riparian owner either knows, or should know, that
his rights have been invaded. It must also be con-
tinuous and uninterrupted for the entire prescriptive
period.123 Since some water uses, like irrigation, may
be sporadic rather than continuous, this requirement is
probably satisfied if the claimant uses the water as his
necessities require. Of course, the initation of a suit
puts an end to the adverse character of the use as does
any other substantial interruption during the prescrip-
tive period. Likewise, the adverse use is interrupted
if at any time during the limitation period the adverse
claimant concedes or acknowledges title in the true
owner. Finally, use of water by one claiming a pre-
scriptive right must be under a claim of right so as to
necessarily imply an ouster of the owner's exclusive
right of control.
Because of the transient nature of water, prescrip-
tive water rights are difficult to acquire. In those
states which follow the natural flow doctrine, there must
be an actionable invasion of the right to the stream's
natural flow, while reasonable use jurisdictions re-
quire an actionable wrong involving actual damages to
the servient owner.
The scope of a prescriptive right, once acquired,
is measured by the use originally made and actually en-
joyed during the prescriptive period. Once a pre-
scriptive right has been perfected, the water use may
be changed at any time, as long as the new use does
not increase the burden imposed on the servient estate.
Finally, prescriptive rights, once acquired, may be lost
by abandonment, although mere nonuse is only evidence of
an intent to abandon and non conclusive.
(d). Riparian Rights in Florida
The Florida Supreme Court first recognized the doc-
trine of riparian rights in Tampa Waterworks Co. v. Cline,
decided in 1896. The plaintiff in the Cline case was a
waterworks company which supplied water to the City of
Tampa from a spring-fed stream.
When the defendant, a nearby landowner, excavated
a hole on his land and exposed the spring, the plaintiff
fearing that it would be polluted by surface runoff,
brought suit to prevent further excavation. The Court
observed that same rules applied to both contained sur-
face waters and underground streams and declared that
the law of riparian rights was applicable in Florida as
part of the English common law. The Court seems to have
rejected the natural flow doctrine in favor of the reason-
able use rule since it sustained the trial court's denial
of injunctive relief when the plaintiff was unable to
The riparian reasonable use rule was also applied
more recently in Taylor v. Tampa Coal Co. which in-
volved a 26-acre fresh-water lake in central Florida.
The plaintiff in Taylor sued to prevent the defendant
from withdrawing water from the lake to irrigate his
citrus grove. The trial court found that the lake level
was falling about 1/2 inch per day because of drought
conditions and another 1/2 inch per day as the result of
the defendant's pumping. At the time of the trial the
lake level was 49 inches below normal and, according to
the plaintiff, this condition interfered with use of the
lake for recreational purposes. The defendant argued
that the plaintiff's inconvenience was trivial in com-
parison with the possible loss to his citrus grove if he
were prevented from irrigating. Nevertheless, the trial
court granted an injunction.
On appeal, the Florida Supreme Court.declared:
It is the rule that the rights of riparian
proprietors to the use of waters in a non-
navigable lake such as the one here in-
volved are equal. Except as to the supply-
ing of natural wants, including the use of
water for domestic purposes of home or
farm, such as drinking, washing, cooking,
or for stock of the proprietor, each ri-
parian owner has the right to use the
water in the lake for all lawful purposes,
so long as his use of water is not det-
rimental to the rights of other riparian
owners The fact that one riparian
owner may choose to use the water in the
lake for recreational purposes while
another may desire to divert it for an
artificial use such as irrigation, will
not give the latter a superior right to
take water to the detriment of the former,
for in this jurisdiction there is no
distinction in respect to use between a
farm and a summer residence.
The Court thus affirmed the lower court's decision
to prohibit the defendant from irrigating while the lake
level was below normal.
One riparian owner also sued another in Lake Gibson
Land Co. v. Lester to prevent withdrawal of water from
a lake for irrigation purposes. However, the facts in
Lester were somewhat different from those of the Taylor
decision. The lake in the Lester case was larger, about
485 acres as opposed to 26 acres. Moreover, the defen-
dant in Lester has been pumping water from the lake for
more than 20 years before the lawsuit was brought. Fi-
nally, the defendant showed that a drought rather than
his pumping was the major cause of the lowering of the
lake below its normal level. Accordingly, the Florida
Supreme Court held in favor of the defendant.
With the enactment of the 1972 Water Resources Law,
the riparian system was replaced by a statutory allo-
cation scheme in most parts of Florida. However, the
riparian system continues to remain in force in those
areas of the state which have not yet implemented the
1972 Act's consumptive use permit provisions.
C. Ground Water
Ground water is one of Florida's most important
natural resources. It is the principal source of water
supply for domestic, municipal, industrial, and agri-
cultural uses. With the tremendous population expan-
sion and industrial growth in Florida today, the proper
conservation and utilization of this resource becomes
Ground water is but one phase of the hydrologic
cycle and, at least in its freshwater form, is derived
from rainfall. Not all of the rainfall will become
ground water, however, since some of it will remain as
surface water or return to the atmosphere through evapo-
ration. It should be noted that technically ground
water is a subclass of a larger subsurface water classi-
fication. Subsurface water occurs in two primary zones
(Fig. 1).9 The water that seeps down to be available
for plants is found in the zone of aeration. The voids
in the rocks in this zone contain both water and air,
and the water is held by capillarity. The remainder of
the subsurface water percolates down to the zone of
saturation, in which the water completely fills the
voids in the rocks. Only the water that reaches this
zone is available to supply springs and wells. The sub-
surface water occurring in the zone of saturation is re-
ferred to as ground water, and it is primarily this water
with which this chapter is concerned.
Ground water moves both by percolation and by lami-
nar flow through small and large openings. Such move-
ment of the water, either by percolation or through the
voids and pores of the rocks and soil, is in response
to hydrostatic pressure and gravity. A bed of sediment
that is porous and permeable enough to allow the move-
ment of ground water to supply wells and springs is
known as an aquifer or water-bearing bed.
SUBSURFACE WATER ZONATION
conditions. The water is under water-table conditions
Ground water occurs under water-table or artesian
conditions. The water is under water-table conditions
when the ground water surface is free to rise and fall
with the water supply. Water that has moved through a
permeable bed and is confined under an impervious water-
tight bed, called an aquiclude, is said to be under
artesian conditions. The artesian water is under pres-
sure and will rise above the water-bearing bed if a well
is sunk through the acquiclude or confining bed.
By measuring the height in many wells throughout
the state to which the artesian water will rise in rela-
tion to sea level, a contour map of the imaginary pres-
sure surface or piezonmetric surface can be prepared
(Fig. 2). The peizometric surface reveals much in-
formation on the source and movement of water in the
artesian aquifer. In areas where the piezometric sur-
face is high but lies beneath the surface of the land,
wells will not flow. Discharge areas, such as the areas
where Florida's springs are found, occur where the
piezometric surface is higher than the land surface and
the wells will flow (Fig. 3).
PIEZOMETRIC SURFACE OF FLORIDAN AQUIFER
p I E Z 0 M E TflC su 4
2. Geology-The Aquifers in Florida
The hydrology of ground water is but one aspect of
an understanding of its characteristics. The geological
formations of an area figure significantly in the availa-
bility of ground water.
Almost the entire state is underlaid with a porous
and permeable limestone that provides much of Florids's
ground water supplies (Fig. 4). These rock formations
are called aquifers. In Florida the aquifers are under
both water-table and artesian conditions.
The Floridan aquifer, which is under artesian con-
ditions, provides most of Florida's water supply, except
where it is absent (Santa Rosa and Escambia counties)
or where it is too salty or mineralized for most purposes
(along the east coast below St. Augustine and the pen-
insula below Lake Okeechobee). The Floridan aquifer is
the source of most of the large springs in Florida and
thousands of wells. Seventeen of these springs rank in
the first magnitude, being springs with an average daily
flow of 64.6 million gallons. The discharge from the
largest of these springs, Silver Springs, has ranged
from 419 to 756 million gallons a day.
The other principal aquifer in Florida is the
Biscayne aquifer of Dade and Broward counties. It is
very productive and consists of highly permeable lime-
stone and sand. It is the sole source of ground water
in the area and exists under water-table conditions.
AREA OF ARTESIAN FLOW
other aquifers in the state are also limited in area
exist under water-table and artesian conditions.
Ground Water Problems
The basic problems of ground water conservation and
control fall under three general headings: (a) inter-
ference between wells; (b) overdraft of the water-bear-
ing bed or aquifer; (c) contamination, which includes
pollution and salt water intrusion.144 Though separable
analytically, these problems are interrelated in terms
of actual cause and effect. In a sense, all of them
involve waste of the ground water supplies because the
supplies are not utilized effectively.
(a) Interference Between Wells
When a well is pumped or allowed to flow, the water
level in the area around the well is lowered as a result
of the withdrawal of the water. The water-table surface
forms a depression in the shape of an inverted cone.
The shape of the cone is governed by the size of the
openings in the rocks forming the aquifer. If the open-
ings are large, the cone is flat; if they are small, the
cone is steep because of the restricted flow. The cone
of depression may extend a few feet from the well to a
few miles. The amount of drawdown in the well depends
on the rate of flow or pumping and the rate or release
of the water from storage in the waterbearing bed.
DISTRIBUTION OF FRESH-WATER AQUIFERS
Interference occurs between wells when the cones of
depression overlap (Fig. 5). The interference may be
caused by improper spacing in the well field or by
excessive withdrawals, or what appears to be an inter-
ference may actually be caused by the lowering of the
water table or pressure surface as a result of in-
adequate recharge of the aquifer because of drought
conditions. When interference occurs, it can usually
be remedied by deepening the well or lowering the pump.
Interferences between private wells of equal use are
normally not as serious as interference between the
larger yield wells supplying cities and industries.
CONE OF DEPRESSION AND INTERFERENCE WELLS
WELL WELL WELL
A 8 C
WATER LEVEL BEFORE PUMPING
WATER LEVEL, WELL A PUMPING
WATER LEVEL WELLS
A, B AND C PUMPING
(b) Overdraft of the Water-Bearing Bed or Aquifer
Overdraft of the water-bearing bed results from
pumping at a greater rate than the intake of water from
the recharge area. The water level is lowered and larger
pumps have to be installed to withdraw the water. Arte-
sian wells may cease flowing and pumping may be required
because of the lowered pressure surface. Overdraft occurs
for a variety of reasons, but it is usually a result of
excessive development of a well field by industries and
municipalities. Wasteful flow of artesian wells and low
rainfall will also contribute to overdraft.
Overdraft of an aquifer may lead to serious problems.
In the first place, the lowered water level will increase
costs of obtaining the water. Larger pumps, deeper wells,
and additional wells may be necessary to obtain the same
yield. Second, serious problems occur in Florida in
areas where the aquifer connects with the sea, or over-
laps salty water. Excessive withdrawals of the fresh
water may draw the salty water into the aquifer, result-
ing in contamination of the water supply.
Contamination includes pollution of the ground
water supplies by industrial, municipal, or private
wastes, and by salt-water encroachment into the aquifer.
Pollution of ground water by industrial and munici-
pal wastes and sewage does not seem to be widespread in
Florida at the present time. In the past considerable
quantities of municipal sewage and industrial wastes
were disposed of through discharge into drainage wells.
(d) Salt-Water Intrusion
Salt-water intrusion from the ocean or from under-
lying saline aquifers has been one of the major threats
to the ground water supplies of many coastal areas of
Florida, and is probably the greatest contamination
problem with respect to Florida's ground water today.
The State Board of Health considers 250 parts per
million chlorides sufficient to make water unsuit-
able for human consumption. In most of the area
of the state south of Lake Okeechobee the Floridan
aquifer has a salinity content that exceeds this
standard. If an artesian well in this area is allowed
to flow, the result will be contamination of the share-
owner water-table aquifer. Many artesian wells were
drilled in the past and were left uncapped and allowed
to flow uncontrolled. In others, the casing has deteri-
orated, resulting in contamination of the surrounding
ground water supplies. It is also known that salt
water from the geological past underlies most of the
artesian aquifers in Florida. If the aquifer is
excessively overdrawn. This salt water may move up
into the fresh-water supplies.
The hydraulic principle applicable to the re-
lation between salt and fresh water is illustrated in
Figure 6. This is the so-called Ghyben-Herzberg
principle. Fresh water is lighter than salt water
and will float on it. According to the above principle,
one foot of fresh water above sea level is necessary to
support a column of salt water 40 feet high. In other
words, a column of fresh water 41 feet high will balance
a column of salt water 40 feet high. When too much
fresh water is removed from the aquifer, it no longer
balances out the salt water, and the salt water moves
into the fresh-water supplies.
GHYBEN-HERZBERG PRINCIPLE OF SALT-FRESH WATER ASSOCIATION
UC 46O J MUA
There are several factors which contribute to salt-
1. Loss of head through increased demands by
municipalities. The demands of agriculture, due largely
to modern irrigation, and of industry with hydraulic
mining, pulp and paper mills, and refrigeration are
v- ; SALT.
2. Excessive drainage. High water levels in the
Everglades and under the Atlantors whic coastal ridge wereto salt-
water encroachment: 1
materially lowers of head through increased demands drainage
municipalities. The demands of agriculture, due largely
canals during the first quarter of the current century.
mining,The result has been excessive drainage and a lower water
2. Excessive drainage. High water levels in the
Everglades and under the Atlantic coastal ridge were
materially lowered by digging of the Everglades drainage
canals during the first quarter of the current century.
The result has been excessive drainage and a lower water
table that no longer holds in check the salt water from
3. Lack of protective works against tidewater in
bayous, canals, and rivers. This factor is particularly
prevalent in southern Florida between Miami and Fort
Lauderdale where numerous canals and old discharge
channels cut the Atlantic coastal ridge.
4. Improper location of wells. Wells in an area
subject to salt-water intrusion should be located as
far as may be economically feasible from the source of
possible salt-water intrusion and properly spaced with
respect to each other to prevent interference.
5. Highly variable annual rainfall with insuf-
ficient surface storage during droughts. The most
important single problem having to do with water con-
servation and control in Florida lies in the fact that
the rainfall is highly variable, resulting in vari-
ations in the piezometric surface.
6. Uncapped wells and leakage. Uncapped artesian
wells represent a serious loss of ground water and
inevitably result in lowered ground water levels. Even
when capped, many old artesian wells have broken or
corroded casings that permit highly saline water from
salt residuals to contaminate the fresh water in over-
Florida's answers to these ground water conservation
problems have been varied. The artesian well-capping
statute was passed in order to control waste through
wild-flowing wells and salt-water contamination from
highly mineralized wells. The problems of salt-water
intrusion are being met by the multipurpose water man-
agement districts and by the setting of salt-water
barrier lines.155 Pollution of the underground waters
has been controlled to some extent by the Department of
Environmental Regulation. Finally, the 1972 Water
Resources Law provides for the establishment of water
management districts which can regulate and control
many of the problems of well interference, overdrafts,
and to some extent salt-water intrusion. To appreciate
the reach and effect of these statutory controls, one
must view them against the background of the common law
rules governing ground water utilization. These rules
are the subject of the next two sections.
4. Legal Classification of Ground Water
Ground water has been divided into two separate
legal categories underground streams and percolating
waters and as thus classified is subject to two sepa-
rate bodies of legal rules. Apparently a lack of
hydrologic information led the early courts to make
these artificial classifications. A classic state-
ment of the early judicial attitude toward percolating
ground water is found in a statement made by the Ohio
Supreme Court in 1861: "Because the existence, origin,
movement and course of such waters, and the causes which
govern and direct their movements, are so secret, occult,
and concealed an attempt to administer any set of
legal rules in respect to them would be involved in hope-
less uncertainty, and would be, therefore, practically
impossible." Today it is generally agreed that virtually
all ground water is in constant movement under the land,
either in watercourses or through the pores of the earth,
and that the precise physical state is of no particular
consequence to the water's utilization.
The Florida Supreme Court has followed the tradition
of classifying ground water into underground streams and
percolating waters. However, recent scientific know-
ledge has changed many of the old ideas concerning per-
colating water, and the Florida court has indicated an
awareness of the nature of ground water and its inter-
relationship to other waters. Nevertheless, many of
the old rules remain, and an understanding of the two
legal classes of ground water is still important.
(a) Underground Streams and Percolating Waters -
Underground streams have been distinguished from
percolating waters on the basis that they flow in fixed
or definite channels; their existence may be known or
ascertainable from surface indications or other methods
without excavations for that purpose. These sub-
terranean streams are presumed to have the same char-
acteristics as a surface stream: that is, a bed, banks,
and a channel of water. By contrast, percolating waters
are defined as those "subsurface waters which, without
any permanent, distinct, or definite channel, percolate
in veins or filter from the lands of one owner to those
(b) Presumption That Ground Water Is Percolating
Because of the difficulty of proof, it is well
settled in Florida, and in most other jurisdictions,
that ground water is presumed to be percolating unless
it is affirmatively shown that the water is flowing in
an underground stream. The burden of proof rests
with the party alleging such fact. This limitation
means that in most cases the water will be treated as
if it were percolating, which greatly reduces the legal
significance of the underground stream classification.
In many jurisdictions, however, it may be advantageous
to show that an underground stream exists, and it is
important to know the various factors looked at by the
(c) Evidence Allowable to Prove an Underground Stream
An underground stream must have essentially the
same characteristics as a surface stream, such as a
bed and banks, a well-defined and distinct channel, and
a current of water, although it need not flow con-
tinuously. The evidence allowable to prove the
existence of a subterranean stream includes surface
indications such as a line of plant growth which would
only occur over a wet area, waters disappearing into
the ground and reappearing a short distance away, or
a line of surface depressions or sinkholes. Other
proofs, such as the geological formation of the earth in
the vicinity, the sound of water passing underneath
the earth, and the interruption of the flow of other
wells or springs may also be shown.
In Tampa Waterworks Co. v. Cline the Florida
Supreme Court found that a well-defined underground
stream existed. The area in question was underlaid
with limestone, and the court noted that such evidence
as a line of surface depressions or sinks over the lands
of the parties indicated the course of a subsurface
stream as found in limestone regions. The court also
took into account the presence of fish both in the
plaintiff's downstream spring and in an excavation made
by the defendant, and the reappearance of dyes in the
downstream spring shortly after being placed in the
excavation as evidence of a well-defined underground
The Florida Supreme Court has also indicated, how-
ever, that the knowledge that the area "is largely under-
laid by a limestone strata, which is a waterbearing strata
that is commonly pierced and riddled with underground
caverns and watercourses" is not sufficient evidence to
establish the existence of a well-defined underground
stream supplying another landowner's spring.
(d) Significance of the Classification
The classification of ground water into underground
streams and percolating waters is significant because
of the different legal rules governing each class. It
is generally agreed that the riparian and prior appro-
priation doctrines governing surface watercourses are
equally applicable to subterranean streams, whereas
different doctrines may govern the rights of landowners
in percolating waters.
At least one court has completely done away with
the legal distinctions and held all underground waters
to be percolating waters, noting that "whether under-
ground waters move in a well-defined channel, either in
a generally confined direction as to the points of the
compass or spread out laterally, is merely a question
of difference or degree."
5. Underground Streams
The rights of adjoining property owners to the use
of water in underground streams have generally been held
to be the same as those of a riparian owner in the waters
of a surface watercourse. The actual rule applicable
depends on whether the particular jurisdiction follows
the "natural flow" or "reasonable use" doctrine with
respect to surface streams. In those states following
the prior appropriation doctrine, subterranean streams
are subject to appropriation under the same rules govern-
ing surface streams.
A 1951 Florida case illustrates one application of
the reasonable use rule to an underground stream, al-
though the case involved alleged unreasonable use of
defendant's land rather than unreasonable use or with-
drawal of the water as such. Plaintiff alleged that
the defendant, in the process of excavating for con-
struction of a yacht basin, caused the water flowing to
the plaintiff's spring from an underground stream to
cease to flow. The trial court ruled for the defendant
on demurrer, despite plaintiff's allegation that the
defendant knew that the underground stream supplied
plaintiff's spring, and that he proceeded with the
excavation anyway. The Florida Supreme Court reversed,
pointing out that, while the affirmative duty rested on
the plaintiff to show the invasion was wither an in-
tentional one or that the conduct was "negligent, reck-
less, or ultra hazardous," the complaint stated a cause
of action for an intentional invasion.
Three years later the case returned to the Supreme
Court, this time on appeal from a jury verdict for
defendant. The evidence at trial had established
that during the course of excavation the defendant's
employees, in an attempt to "cap" the hole, poured four
yards of ready-mix concrete into the crevice; the spring
then ceased to flow. The jury found for the defendant.
The Supreme Court reversed, holding that the only in-
ference which reasonable men could draw from the evidence
was that the concrete stopped the flow of the spring, and
that defendant's attempt to cap the hole was not in ac-
cord with good engineering practices and was therefore
unreasonable under the circumstances.
The Florida Supreme Court's decision was consistent
with the rule of the Restatement of Torts. If the
interference is intentional, the plaintiff must show that
defendant's use of his land was unreasonable; the utility
of the conduct is balanced against the harm to the plain-
tiff. If the interference is unintentional, the
defendant's conduct must have been either negligent, reck-
less, or ultrahazardous in order for the plaintiff to
6. Percolating Waters
Percolating waters "ooze, seep or filter through the
soil beneath the surface, without a defined channel."
Ground water is presumed to be percolating rather than
flowing in an underground stream because visible surface
indications and available scientific information are
usually inadequate to allow an accurate determination
of the source and movement of underground water. Some
states have even abandoned the underground stream classi-
fiction, and hold all ground waters to be percolating.
Although consumptive use rules with respect to per-
colating ground water are hopelessly fragmented and con-
fused, three major approaches can be discerned in the
East: the absolute ownership doctrine, the American rule,
and the correlative rights doctrine. In addition, many
western states now apply the prior appropriation system
to ground water.
(a) The Absolute Ownership Doctrine
According to the English or absolute ownership
doctrine, a landowner may extract an unlimited quantity
of percolating ground water from his land and use it on
overlying or distant lands, regardless of injury to
adjacent landowners. 187 The rule imposes liability only
for waste or for malicious injury to another. The
English rule is followed in Ohio, Maine, Massachusetts,
Mississippi, Rhode Island and Vermont.
The absolute ownership doctrine originated in Acton
v. Blundell, an English case decided in 1843. The plain-
tiff in that case was a manufacturer whose well was
affected by nearby mining operations. As the defendant
pumped water out of the shaft of his coal mine, he drew
the percolating water from under the plaintiff's well.
The plaintiff sought damages in an action on the case.
Although the defendant's conduct might have been action-
able if a surface watercourse had been involved, the
court refused to apply the law of surface waters because:1
no man can tell what changes these
underground sources have undergone in the
progress of time .. [T]here can be
no ground for implying any mutual consent
or agreement for ages past which is
one of the foundations on which the law as
to running streams is supposed to be built
Instead, the Acton court held that the defendant was
entitled to use the water as he saw fit, even if he in-
jured the plaintiff. This result was justified since
the defendant, as owner of the overlying land, had an
exclusive right to any percolating ground water
beneath his tract.
The absolute ownership doctrine recognizes a
vested property in the overlying landowner to per-
colating ground water beneath his property regardless
of whether he actually puts the water to use. It has
been said that "the percolating water belongs to the
owner of the land, as much as the land itself, or the
rocks and stones in it."92 However, since a landowner
has no rights against an adjoining landowner who also
withdraws ground water, it is somewhat misleading to
say that he owns "absolutely" the percolating water
under his land. Instead it would seem that the land-
owner does not really own the water until he had reduced
it to actual possession. The property right involved
is the landowner's exclusive right of access to the
ground water through his land, rather than ownership
of the underground water itself.
The absolute ownership rule was followed in many
American jurisdictions in the nineteenth century,
and is still recognized in a number of states today.
It is often criticized, however, because it fails to
account for the nature of ground water and because it
favors municipalities and other large users who are
able to drill deep wells.
ground water for farming operations on his land. The
City of New York, which owned an adjoining two-acre tract,
sank a number of wells to obtain water for sale to the
City of Brooklyn. When the wells interferred with plain-
tiff's farming operations, he sought injunctive relief.
Although the court conceded that there would be no lia-
bility under the absolute ownership doctrine, it never-
theless enjoined the defendant's extraction of ground
water for transportation and sale to distant users.
The American rule has displaced the older absolute
ownership doctrine in many jurisdictions, and is now
followed in Alabama, Connecticut, Illinois, Michigan,
New Hampshire, New York, Pennsylvania, Tennessee, and
West Virginia. Although the American rule differs
from the absolute ownership doctrine where the use of
ground water on non-overlying land is concerned, the
two rules are quite similar conceptually and the
American rule may be regarded as a modification of the
absolute ownership doctrine. Both rules place the
ownership of percolating waters in overlying landowners,
but the American rule places reasonable limitations
upon the exercise of ownership rights similar to
the law of private nuisance. Also, like the absolute
ownership doctrine, the American rule favors large users
at the expense of farmers and domestic users who often
have shallow wells and less powerful pumps.
(b) The American Rule
The American or reasonable use rule, allows a
landowner to use as much percolating ground water as
he needs, regardless of any adverse effect on other
landowners, as long as the water use is reasonably
related to the natural use of his overlying land.
The use must be beneficial; a malicious or wasteful
use is considered unreasonable per se and may be
enjoined even though the plaintiff has suffered no
actual damage. As a general rule, however, the use
of water on overlying land for agricultural, domestic,
mining or manufacturing purposes is deemed to be rea-
The absolute ownership doctrine and the American
rule are virtually the same with respect to the land-
owner's right to use percolating ground water on over-
lying land, but they differ significantly in regard to
the extraction and transportation of ground water for
use in distant areas. The absolute ownership doctrine
permits ground water to be transported and used on non-
overlying land without liability even though neighbor-
ing landowners are injured. According to the American
rule, however, the sale or use of water on distant lands
is unreasonable and actionable if it impairs the ground
water supply of another landowner, even though the
defendant's use is beneficial.
The leading case on the American rule is Forbell
v. City of New York. The plaintiff in Forbell used
(c) The Correlative Rights Doctrine
Under the correlative rights doctrine, each land
owner over a common ground water pool has an equal and
correlative right to make a beneficial use of the water
on his overlying land. The correlative rights doctrine
is sometimes known as the "California rule" because it
was introduced by the California Supreme Court in Katz
v. Walkinshaw. The plaintiff in the Katz case was
using ground water for domestic and irrigation purposes
on land overlying an artesian basin. He brought suit
when the defendant began pumping the water for sale and
use outside the basin. The court stated that use of
ground water on nonoverlying land would not be allowed
if it caused injury to an overlying user, but went on to
declare that landowners above a common underground basin
have such equal rights in the underlying water so it must
be prorated among them when the available supply was not
sufficient to meet the needs of all.
Outside of California the doctrine provides that
ground water must be equitably apportioned among over-
lying owners in times of shortage, with each owner en-
titled to no more than his fair and just proportion.
This is sometimes known as the eastern correlative
rights doctrine. In some instances, particularly in
the case of irrigators, the correlative rights doctrine
limits the user to his proportionate share, determined
by comparing his surface area with the whole area over-
lying the water supply.
Some writers view the correlative rights doctrine
as an attempt to analogize the law of percolating
ground water to the law of surface streams. The
approach of these two doctrines, with their emphasis
on common rights to water, is similar. Using either
the surface water reasonable use rule or the corre-
lative rights doctrine, a number of eastern states
appear to have abandoned the American rule. Other
commentators regard the correlative rights doctrine
as an extension or modification of the American rule.
However, these two doctrines seem to rest upon different
concepts of water ownership. Under the correlative
rights doctrine, overlying owners have only usufructary
rights and not, as under the absolute ownership and
American rules, proprietary rights in the corpus of the
water itself. It is this concept of a usufructary
right which justifies the requirement that overlying
owners share the available water supply during shortages.
The surface water reasonable use rule rests on a similar
In two Florida cases on the point the Florida
Supreme Court has indicated it will invoke a reasonable
use rule similar to that governing riparian rights. In
Cason v. Florida Power Co. the defendant erected a dam
which obstructed the natural subterranean drainage of
plaintiff's land. In overruling the motion for a
directed verdict in favor of the defendant, the court
noted that the same principle of reasonable use applicable
to a surface stream should be applicable to percolating
water. The court stated that "The reasonableness of the
use of property by its owner must of necessity be deter-
mined from the facts and circumstances of particular
cases as they arise, by the application of appropriate
provisions or principles of law and the dictates of
mutual or reciprocal justice.
In Koch v. Wick, a more recent holding, the
Florida Supreme Court reaffirmed its application of
reasonable use principles. In that case the Board of
County Commissioners of Pinellas County sank wells on
the road right of way adjacent to plaintiff's property
and proceeded to pump water for individuals and munici-
palities in the county. The county was successfully en-
joined in the lower court action by the plaintiff. The
county board then leased a strip of land 60 feet in
width and 2,640 feet in length adjoining plaintiff's
land. The plaintiff again sought an injunction and
damages. The trial court granted the county's motion
to dismiss. On appeal, the Supreme Court noted that
Cason and Labruzzo had overruled the old rule that an
owner had an unrestricted right to draw percolating
water from his land and had adopted the rule that the
right to draw percolating waters is "bounded by reason-
ableness and beneficial use of the land. The court
stated that the question must be resolved on the reason-
ableness of the use, and apparently extended this doctrine
to municipalities as well as individuals. The lower
court was reversed.
Although the reasonable use rule as applied by the
court does not give definite answers as to the actual
amount of water that may be taken by overlying landowners,
it does recognize that the relationship of overlying
landowners is similar to that of riparian owners on a
(d) The Restatement of Torts Approach
Recently, the American Law Institute in its Re-
statement of Torts has recommended a revision of the
existing American rule in favor of an approach somewhat
similar to the surface water reasonable use rule. The
Restatement (Second) of Torts Section 858 provides:
(1) A proprietor of land or his grantee
who withdraws ground water from the land
and uses it for a beneficial purpose is
not subject to liability for interference
with the use of water by another, unless
(a) the withdrawal of ground water
unreasonably causes harm to a pro-
prietor of neighboring land through
lowering the water table or reduc-
ing artesian pressure,
(b) the withdrawal of ground water
exceeds the proprietor's reason-
able share of the annual supply or
total store of ground water, or
(c) the withdrawal of the ground
water has a direct and substantial
effect upon a watercourse or lake
and unreasonably causes harm to a
person entitled to the use of its
(2) The determination of liability under
clauses (a), (b), and (c) of Subsection
(1) is governed by the principles stated in
SS 850 to 857.223
The Restatement includes all of the traditional
grounds of liability, but excludes some of the common
law defenses. It utilizes a reasonableness standard,
but the concept offers the overlying user less pro-
tection from liability than the American rule.2
Instead it utilizes principles that are similar to
the surface water reasonable use rule.
Under the Restatement an overlying user may be
liable for harm resulting from ground-water with-
drawals even though the resulting water use is bene-
ficial to the overlying surface. "Reasonableness" and
beneficial effect of use are not judged solely in re-
lation to use on the overlying land, but may vary with
the circumstances of the case.2 While the American
rule is intended to encourage maximum development of
ground water by overlying landowners on the theory that
they will be the most efficient users, the Restatement
approach is concerned with the interests of all water
Wisconsin appears to be the only state to have
adopted the Restatement position. In State v. Michels
Pipleine Construction Inc., the defendant was con-
structing a large sewer line beneath the Root River
Parkway for the Metropolitan Sewer Commission of
Milwaukee. Since the project involved tunnelling at
depths of forty feet, the Michels tried to dewater the
construction site by pumping water from nearby wells.
These dewatering operations apparently interfered with
wells in the area and also caused damage to foundations,
basement walls and driveways due to subsidence.
The State brought suit to compel the defendant to
modify its construction activities in order to reduce
the harm to adjoinint landowners. The State argued that
the higher costs resulting from different construction
techniques should be borne by those who would benefit
from the sewer system. The trial court, however, dis-
missed the action, declaring that "there was no cause
of action on the part of an injured person concerning
his water table." On appeal, the Wisconsin Supreme
Court concluded that advancements in the science of
hydrology made the prevailing English rule obsolete.
Moreover, it felt that the hydrologic relationship
between ground water and surface water made it dif-
ficult justify applying an absolute ownership doctrine
to one class of water while subjecting the latter to a
reasonable use rule. Accordingly, it endorsed the
Restatement position, thereby assuring that a similar
allocation rule would be applied to both surface water
and ground water.
One issue that has received a good deal of atten-
tion recently is the extent to which common-law ground
water rules affect liability for subsidence caused by
ground water withdrawals.
The first American case to allow recovery for
subsidence was Cabot v. Kingman, which based liability
on deprivation of lateral support. A more recent case,
Gamer v. Town of Milton, held that ground water con-
sumptive use doctrines, such as the absolute ownership
rule, would not prevent liability for negligent conduct
when subsidence occurred. However, the Maryland court,
in Finley v. Teeter Stone Co., refused to allow re-
covery for subsidence caused by ground water withdrawals
when the pumping was conducted for a reasonable purpose.
The defendant in this case pumped water out of his quarry
pit in order to keep the excavation dry. This drained
the surrounding limestone acquifer and created solution
cavities under the land, which eventually caused sink-
holes to develop on the plaintiff's adjoining farm.
The court declared that since ground water was a transi-
tory and subject to "flowing, shifting, or changing
position in response to the vagaries of weather and
climatic conditions," it could not be considered part of
the soil's lateral support. The court also ruled out
subjacent support because there was no actural subsurface
invasion. Instead, the court concluded that there was
no liability for withdrawals which caused subsidence as
long as the water was used in connection with the legiti-
mate use of the defendant's land. Finding that his
quarrying operations met this requirement, the Maryland
court found in favor of the defendant.2
Section 818 of the Restatement of Torts reflects
increasing concern for the victims of subsidence. The
revised section now provides that "One who is privileged
to withdraw subterranean water, oil, minerals, or other
substances from under the land is not for that reason
privileged to cause a subsidence of the others' land by
such withdrawal. The commentary states that section
818 applies to the withdrawal of any solid, liquid or
gaseous substance from under another's land even though
the withdrawal is legally permitted. Nor does the
means of withdrawal make any difference. Thus, accord-
ing to section 818, one who withdraws ground water may
be liable for subsidence damages regardless of the pre-
vailing ground water allocation rule.
Smith-Southwest Industries v. Firewood Development
Co. is the most recent case to address this issue. In
that case the plaintiffs attempted to recover for sub-
sidence to their property caused by the defendant's with-
drawal of large quantities of ground water by means of
high-capacity pumps. The trial court, relying on the
absolute ownership doctrine, granted a summary judg-
ment for the defendants. The intermediate appellate
court reversed, finding that liability for subsidence
damages might be predicated on theories of negligence
and nuisance in fact. On appeal, however, the Texas
court affirmed the trial court's decision for the de-
fendants, but also declared that it would impose lia-
bility in the future for subsidence caused by negligence
in pumping or drilling236
in pumping or drilling.
Recent cases suggest that the courts will provide
some protection against damages from subsidence even
when the English or absolute ownership rule is recognized.
It remains to be seen, however, whether the strict lia-
bility approach of the Restatement of Torts of the less
restrictive negligence theory will prevail.
D. An Evaluation of Common Law Water Rights
Unfortunately, the riparian system is not responsive
to the needs of many water users. Ideally, water rights
should be both definite and secure: The water right
should be clearly defined with respect to quantity and
in terms of its relation to the rights of other users.
The reasonable use rule, however, is vague and uncertain;
one cannot know with any precision who may use the avail-
able water, how much can be used, or for what purpose it
can be used. This uncertainty exists because any use
must be reasonable with respect to the uses of otherri-
parian owners, and these uses are constantly changing.2
The uncertain nature of the user's water right under
the riparian system is further aggravated because mecha-
nisms for resolving controversies among water users are
severely limited. Not only is litigation time consuming,
expensive, and uncertain in its outcome, but the results
of successful litigation are often narrow and limited
in scope. First, the judgment relates only to the
parties before the court and not other water users.
Since the courts will usually not apportion a stream
between competing users, the judgment will be "all or
nothing" for one party or another. Moreover, a judg-
ment pertains only to the present facts and new develop-
ments which change the relative positions of the parties
cannot adequately be dealt with absent further
Another criticism is that the riparian system tends
to foster locational inefficiencies. In most states
it restricts excessively the use of the water for the
benefit on non-riparian land. Since many beneficial
uses consume water some distance from the point of
diversion, these locational restrictions probably re-
sult in less efficient water use. Thus, while the
riparian system possesses the advantage of flexibility,
insecurity of the water right and locational restrictions
often inhibit efficient water use.
As far as ground water allocation doctrines are
concerned, the correlative rights doctrine may be more
equitable than either the absolute ownership doctrine
or the American rule since small users may be better
protected and the effects of a water shortage are borne
proportionately by all users. In addition, hydrological
considerations favor the correlative rights doctrine
since the hydrologic interrelation between percolating
ground water and surface water supports a uniform allo-
cation rule for all forms of water. Only the corre-
lative rights doctrine sufficiently resembles the
surface water reasonable use rule, both in terms of an
allocative standard and in terms of an underlying
theory of property interest in the water, to allow the
courts to fashion a rational and integrated law of
On the other hand, the correlative rights doctrine
is subject to many of the sar.e criticisms as the sur-
face water reasonable use rule. The correlative rights
rule is so indefinite that it is exceedingly difficult
to apply to varying conditions. Moreover, it offers
no security to early developers by protecting the water
supply on which they have relied, nor does it permit
landowners to acquire a more secure right to an adequate
supply of water by purchase or contract.
1. Foley, Water & The Laws of Nature, 5 Kan. L. Rev.
492, 496 (1957).
2. Tampa Waterworks Co. v. Cline, 20 So. 780 782
(Fla. 1896), adopting the classes of water from
Frazier v. Brown, 12 Ohio St. 29A; 298 (1861).
3. Thomas, Hydrology v. Water Allocation in the East-
ern United States, in The Law of Water Allocation
in the Eastern United States 164, 170 (Haber &
Bergen ed. 1956).
4. Consumptive riparian rights have no legal status in
the eight western states which adhere to the
"Colorado doctrine." These states include Arizona,
Colorado, Idaho, Montana, Nevada, New Mexico, Utah,
and Wyoming. Riparian rights exist along with ap-
propriative water rights in the eleven "California
doctrine" states. These include Alaska, California,
Kansas, Mississippi, Nebraska, North Dakota,
Oklahoma, Oregon, South Dakota, Texas and Washington.
In these states, generally located along the Pacific
Coast in the Great Plains area, riparian rights were
recognized before the prior appropriation system
was adopted. However, since the riparian and appro-
priative systems do not work well together, most
"California doctrine" states limit the exercise of
riparian rights in some fashion. Trelease, Coordi-
nation of Riparian and Appropriative Rights to the
Use of Water, 33 Tex. L. Rev. 24 (1954).
5. Pasadena v. Alhambra, 33 Cal.2d 908, 926, 207 P.2d
17 (1949); Bailey v. Idaho Ir-. Co., 39 Idaho 354,
358, 227 P. 1055 (1924).
6. Smith v. O'Hara, 43 Cal. 371, 375 (1872). This
protection of the junior appropriative right may
be had against unlawful acts of senior appropriators
as well as by others.
7. 1A G. Thompson, Commentaries on the Modern Law of
Real Property S 263 (1964).
8. Hutchins, Background and Modern Developments in
Water Law in the United States, 2 Nat. Res. J. 426,
417 (1962). Although the date of priority is gen-
erally established by the date of public notice or
by the date of application for a permit, the ap-
propriation is effectively secured merely be apply-
ing the water to the stated use. Davis, Australian
and American Water Allocation Systems Companred, 9
B.C. Ind. & Com. L. Rev. 647, 688 (1968).
9. 5 R. Powell, The Law of Property 11 735 (1973).
10. 1 W. Hutchins, Water Rights Laws in the Nineteen
Western States 491 (1971).
11. N.D. Cent Code S 61-04-04 (1960); Utah Code Ann.
73-3-2 (Supp. 1977).
12. 1 W. Hutchins, supra note 10, at 517.
13. Davis, supra note 8, at 688.
14. Johnson, The Challenge of Prescriptive Water Rights,
30 Tex. L. Rev. 669, 673 (1952).
15. Ariz. Rev. Stat. Ann. S 45-147 (Supp. 1978); Calif.
Water Code 106, 1254, 1460 (1971); Kan. Stat.
Ann. 82a-707(b) (1969); Ore. Rev. Stat. 540.140,
(1960); Wash. Rev. Code Ann. S 90.03.040 (1972);
Wyo. Stat. Ann. 41-3 (1959).
16. Colo. Const. Art XVI, 6; Neb. Const. Art. XV, S 6.
17. Davis, supra note 8, at 688-89.
18. Rejected. S.B. 69, 60th Sess., Ark. G.A. (1955).
19. Study recommendation not adopted. See Institute Of
Law and Government, A Study Of The Riparian and
Prior Appropriative Doctrines of Water Law (School
of Law, Univ. of Ga. 1955).
20. Rejected by Legislative Study Commission. See Fla.
Water Resources Study Comm'n,Florida's Water Resources:
A Report To The Governor and The 1957 Legislature
14, 15 (1956).
21. Study recommendation not adopted. See The Law of
Water Allocation In the Eastern United States 49-
70, 441-90 (D. Haber & S. Bergen eds. 1958) (sets
forth and disusses the proposed statute).
22. Adopted. Miss. Code Ann. 5Q56-04 (Supp. 1971).
23. Rejected. H.B. 298. S.B. 153, N.C.G.A. (1955).
24. Rejected. H.B. 1085. S.B. 43, S.C.G.A. (1956).
25. Proposal not adopted. See discussion in Coates,
Present and Proposed Legal Control of Water Resources
in Wisconsin, 1953 Wis. L. Rev. 256.
26. The veto of appropriative type legislation in West
Virginia was a topic of discussion at the Evniron-
mental Law Symposium. May 23-24, 1970. Morgantown,
27. Miss. Code Ann. S 51-3-7 (1972). See also Champion,
Prior Appropriation in Mississippi: A Statutory
Analysis, 39 Miss. L.J. 1 (1967).
28. F. Maloney, R. Ausness & J. Morris, A Model Water
Code 76 (1972).
30. See 1 H. Farnham, The Law of Waters and Water Rights
31. A riparian owner is one who owns land touching on
the bank of a watercourse. See Agnor, Riparian
Rights in the Southeastern States, 5 S.C.L.Q. 141,
142 (1952). As between riparian owners, the lower
owner is, of course, the one farther downstream.
33. Hanks, The Law of Water in New Jersey, 22 Rutgers L.
Rev. 621, 628-29 (1968).
34. Kinyon, What Can a Riparian Proprietor Do?, 21 Minn.
L. Rev. 512, 527 (1937).
35. Evans v. Merriweather, 4 Ill. 492 (1842).
36. Meng v. Coffey, 93 N.W. 713, 715-16 (Neb. 1903);
Crawford Co. v. Hathaway, 93 N.W. 781 (Neb. 1903);
Hough v. Porter, 89 P. 1083 (Ore. 1909); Salem
Flouring Mills Co. v. Lord, 69 P. 1033, (Ore. 1902);
Martin v. Burr, 228 S.W. 543 (Tex. 1921).
37. Spence v. McDonough, 42 N.W. 371 (Iowa 1889);
Canton v. Shock, 63 N.W. 600 (Ohio 1902); Filbert
v. Dechert, 22 Pa. Super. 362 (1903); Beuscher,
Appropriation Water Law Elements in Riparian
Doctrine States, 10 Buffalo L. Rev. 448, 452 (1961).
38. Prentice v. Geiger, 74 N.Y. 341 (1878); Pennsylvania
R. Co. v. Miller, 3 A. 780 (Pa. 1886); Lone Tree
Ditch Co. v. Cyclone Ditch Co., 128 N.W. 596
(S.D. 1910); Watkins Land Co. v. Clements, 86 S.W.
733 (Tex. 1905); Nielson v. Sponer 89 P. 155 (Wash.
39. Harvey Realty Co. v. Wallingford, 150 A. 60 (Conn.
1930); Robertson v. Arnold, 186 S.E. 806 (Ga. 1936);
Roberts v. Martin, 77 S.E. 535 (W. Va. 1913); Comment,
Development of Riparian Law in Alabama, 12 Ala. L. Rev.
155, 158 (1959).
40. Guynn v. Wabash Water & Light Co., 104 N.E. 849
(Ind. 1914); Note, Water Rights in Indiana, 32 Ind.
L.J. 39, 42 (1956).
41. Teass, Water and Water Courses-Riparian Rights-
Diversion of Storm or Flood Waters for Use on Non-
Riparian Lands, 18 Va. L. Rev. 223, 236 (1932).
42. Restatement (Second) of Torts 850A, Scope Note
(Tent. Draft No. 17, 1971).
43. Only Georgia, New Jersey, Pennsylvania and West
Virginia expressly adhere to the natural flow
doctrine. Robertson v. Arnold, 186 S.E. 806
(Ga. 1936); McCord v. Big Brothers Movement, Inc.,
185 A. 480 (N.J. 1936); Palmer Water Co. v.
Lehighton Water Supply Co., 124 A. 747 (Pa. 1924);
McCausland v. Jarrell, 68 S.E.2d 729 (W. Va. 1951).
44. In spite of this, the natural flow and reasonable
use rules often tend to become blended or confused
in practice. Davis, Water Rights in Iowa, 41
Iowa L. Rev. 216, 218 n.8 (1956).
45. 5 R. Powell, The Law of Real Pro-erty, 11 713 (1976);
Restatement (Second) of Torts 853, comments c, d,
& e (Tent. Draft No. 17, 1971).
46. Trelease, The Concept of Reasonable Beneficial Use
in the Law of Surface Streams, 12 Wyo. L.J. 1, 16
47. 6A American Law of Property 28.55 (A.J. Casner, ed.
1954); but see Trelease, Alternatives to Appropriation
Law, 6 Denver J. of Int'l L. & Pol. 283, 297 (1976).
48. Haar & Gordon, Riparian Water Rights vs. a Prior
Appropriation System: A Comparison, 38 B.U.L. Rev.
207, 240 (1958).
49. Restatement (Second) of Torts 850A, comment d
(Tent. Draft No. 17, 1971).
50. Maloney, Capehart & Hoofman, Florida's "Reasonable
Beneficial" Water Use Standard: Have East and West
Met?, 31 U. Fla. L. Rev. 253, 256-262 (1979).
51. See also Grimes, Lex Aquae Arkansas, 27 Ark. L. Rev.
429, 442 (1973).
52. Restatement (Second) of Torts 850A, Comment on
clause (a) (1979) [Hereinafter cited as "Restatement
(2d) ".) ]
53. Comment, Acquisition of the Right to Use Water,
29 Tul. L. Rev. 554, 556 (1955).
54. Ausness, Water Permits ir a Riparian State: Problems
and Proposals, 66 Ky. L.J. 191, 199-201 (1977).
55. Harris v. Brooks, 283 S.W.2d 129 (Ark. 1955); Taylor
v. Tampa Coal Co., 46 So.2d 392 (Fla. 1950); Hoover
v. Crane, 106 N.W.2d 563 (Mich. 1960); Johnson v.
Seifert, 100 N.W.2d 689 (Minn. 1960); Bollinger v.
Henry, 375 S.W.2d 161 (Mo. 1964).
56. Water Pollution interfering with the reasonable uses
of lower riparian owners has been held unreasonable.
See, e.g., Stanton v. Trustees of St. Joseph's
College, 254 A.2d 597 (Mc. 1969). Although the
courts have considered pollution as a factor to be
weighed in the determination of whether a use is
"reasonable," it is important to note that most
states, including Florida, have a separate statutory
scheme for the regulation of water pollution. See
Fla. Stat. 403.011-.261 (1977).
57. Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955).
58. Reynolds Metal Co. v. Ball, 217 Ark. 579, 232
S.W.2d 441 (1950).
59. See, e.g., Stamford Extract Mfg. Co. v. Stamford
Rolling Mills Co., 101 Conn. 310, 125 A. 623 (1924)
(upper riparian's use held reasonable where dis-
charges after best available treatment neither sub-
stantially nor appreciably contaminated the water
and where many other new factories and cities were
possible sources of pollution); Hazard powder Co.
v. Sommersville Mfg. Co., 78 Conn. 171, 61 A. 519
(1905) (where upper riparian's water wheel in-
stallation found excellently arranged and adapted
to size, capacity, and varying flows of the river
and where the use was found to follow the custom
of most uses on the river, use held reasonable);
Davis v. Getchell, 50 Me. 602 (1862) (where volume
of small stream in ordinary course was found in-
sufficient for any practical use, detention for
reasonable time to make water power useful and
valuable held reasonable); Thompson v. Enz, 379
Mich. 667, 154 N.W.2d 473 (1967); Red River Roller
Mills v. Wright, 30 Minn. 249, 15 N.W. 167 (1883)
(use found unreasonable where lower riparian in-
jured and upper riparian failed to show the
character of the stream, because what might be
reasonable on one stream adapted and used for
certain purposes might not be proper upon another
stream of a different character used for different
purposes); Davis v. Town of Harrisonburg, 116 Va.
864, 83 S.E. 491 (1914) (upper riparian's hydro-
electric plant found adapted to the ordinary capacity
of the stream; therefore, dentention of water for
reasonable time during drough, held reasonable);
Timm v. Bear, 29 Wis, 25:, 266 (1871) (upper riparian's
interference with stream flow held unreasonable where
his mills required 50% more than the ordinary supply
of water in the stream); Restatement.(2d), S 850A,
comment on clause (b).
60. Restatement (2d) 850A, comment on clause (c).
61. Id. See, e.g., Taylor v. Tampa Coal Co., 46 So.2d
392 (Fla. 1950) (irrigation versus recreational
value); Higday v. Nickolaus, 469 S.W.2d 859 (Mo.
App. 1971) (value of city's investment weighed);
Borough of Westville v. Whitney Home Builders, 40
N.J. Super, 62, 122 A.2d 233 (Super. Ct. App. Div.
1956) (aesthetic impairment and recreational value
versus developer's investment).
62. Restatement (2d), 850A, comment on clause (d).
63. Lamb v. Dade Cty., 159 So.2d 477, 479 (Fla, 3d
D.C.A. 1964) (interference with salinity control
system); Higday v. Nickolaus, 469 S.W.2d 859, 871
(Mo. App. 1971) (assurance of wholesome water supply
to public). See generally Hart v. D'Agostini,
7 Mich. App. 319, 151 N.W.2d 826 (1967)(temporary
interference with groundwater allowed where sanitary
sewer trunk line benefitted the area); 42 A.L.R.3d
426 (1972)(propriety of injunctive relief against
diversion of water by municipally incorporated public
utility); Borough of Westville v. Whitney Home
Builders, 40 N.J. Super., 62, 122 A.2d 233 (Super.
Ct. App. Div. 1956) (public policy recognizing social
importance of sewage disposal plants).
64. Restatement (2d) 850A, comment on clause (e) (citing
Gehlen v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897);
Elliot v. Fitchburg R.R. Co., 10 Cush. 191 (Mass.
1852); Hazard Powder Co. v. Sommersville Mfg. Co.,
78 Conn. 171, 61 A. 519 (1905); Heise v. Schulz,
167 Kan. 34, 204 P.2d 706 (1949); Louisville v.
Tway, 297 Ky. 565, 180 S.W.2d 278 (1944); Meyers v.
Lafayette Club, 197 Minn. 241, 266 N.W. 861 (1936);
Bollinger v. Henry, 375 S.W.2d 161 (Mo. 1964);
Montelious v. Elsea, 11 Ohio St. 2d 57, 161 N.E.2d
675 (1959). See also Tampa Water Works Co. v. Cline,
37 Fla. 586, 20 So. 780 (1896); Lake Gibson Land Co.
v. Lester, 102 So.2d 833 (Fla. 2d D.C.A. 1958).
65. Scott v. Slaughter, 237 Ark. 394, 373 S.W.2d 577
(1964); Conobre v. Fritsch, 92 Ohio App. 520, 111
N.E.2d 38 (1952).
66. Restatement (2d), 850A, clause (f), comments h & i,
(citing Thomas v. LaCotts, 222 Ark. 161, 257 S.W.2d
936 (1953)); Rancho Santa Margarita v. Vail, 11 Cal.
2d 501, 81 P.2d 533 (1938); Colorado Springs v.
Bender, 148 Colo. 458, 366 P.2d 552 (1961) (under-
ground stream); Hazard Powde. Co. v. Sommersville
Mfg. Co., 78 Conn. 171, 31 A. 519 (1905); Wilkes v.
Perry, 92 Iowa 417, 60 N.W. 727 (1894); Crowley v.
District Court, 108 Mont. 89, 88 P.2d 23 (1939);
Warner Valley Stock Co. v. Lynch, 215 Or. 523, 336
P.2d 884 (1959).
More recent decisions weighing the practicality of
avoiding the harm include: Scott v. Slaughter, 237
Ark. 394, 373 S.W.2d 577 (1964) (dam lowered two
feet); Collens v. New Canaan Water Co., 155 Conn.
477, 234 A.2d 825 (1967) (other sources were avail-
able); MacArtor v. Graylyn Crest 111 Swim Club, 41
Del. Ch. 26, 187 A.2d 417 (1936) (groundwater,
adjusting method of use found impractical).
67. Restatement (2d), 850A, comment on clause (g).
68. Id., clause (g), comment j. See, e.g., Lingo v. City
of Jacksonville, 253 Ark. 63, 522 S.W.2d 403 (1975)
(groundwater); Harris v. Brooks, 225 Ark. 436, 283
S.W.2d 129 (1955); Half Moon Bay Land Co. v. Cowell,
173 Cal. 543, 160 P. 675 (1916); Wiggins v.
Muscupiabe Land and Water Co., 113 Cal. 182, 45 P.
160 (1896); Harris v. Harrison, 93 Cal. 676, 29 P.
325 (1892); Collens v. New Canaan Water Co., 155
Conn. 477, 234 A.2d 825 (1967) (groundwater); Bliss
v. Kennedy, 43 Ill. 67 (1867); Meng v. Coffey, 67
Neb. 500, 93 N.W. 713 (1903). Many of the cares
cited are from prior appropriation states in the
West because these states also recognize, or did
recognize, the riparian doctrine of reasonable use.
69. See Maloney, Capehart & Hoofman, supra note 50, at
70. Davis, Coblentz & Titelbaum, Waters and Water
Rights, S 612 at 42 (R. Clark ed 1976). (citing
Dumont v. Kellog, 29 Mich. 420, 18 Am. Rep. 102
(1874), and Bliss v. Kennedy, 43 Ill. 67 (1867).
Accord, 78 Am. Jur. 2d Waters S 285 (1975).
71. Restatement (2d) 850A, clause (h), comment 1 (citing
McCarter v. Hudson Cnty. Water Co., 70 N.J. Eq.
695, 65 A. 489 (Ch. 1906).
72. Id. (citing Strobel v. Kerr Salt Co., 164 N.Y. 303,
58 N.E. 142 (1900); Harris v. Brooks, 225 Ark. 436,
283 S.W.2d 129 (1955).
Another commentator has stated flatly that where
"different lawful and reasonable uses are in-
herently mutually exclusive, the prior in time will
prevail...." Grimes, supra note 51, at 444.
80. Watkins Land Co. v. Clements, 86 S.W. 733 (Tex.
1905); Yearsley v. Cater, 270 P. 804 (Wash. 1928).
81. Waite, Beneficial Use of Water in a Riparian
Jurisdiction, 1969 Wis. L. Rev. 864, 872.
82. Boehmer v. Big Rock Irrigation Dist., 48 P. 908
(Cal. 1897); Yearsley v. Cater, 270 P. 804 (Wash.
83. Levi & Schneeberger, The Chain and Unit of Title
Theories for Delineating Riparian Lands: Economic
Analysis as an Alternative to Case Precedent, 21
Buffalo L. Rev. 439, 442 (1972).
84. Clark v. Allaman, 80 P. 571 (Kan. 1905); Jones v.
Conn, 64 P. 855 (Ore. 1901); Slack v. Marsh, 11
Phila. 543 (C.P. Pa. 1875); Restatement of Torts
843, comment c (1939).
85. Sparks Mfg. Co. v. Town of Newton, 41 A. 385 (N.J.
1898) rev'd on other grounds, 45 A. 596 (N.J. 1900).
See also 1 Kinney, The Law of Irrigation and Water
Rights 798 (2d ed. 1912); 6A American Law of Property
S 28.55 (A.J. Casner, ed. 1954).
86. Farnham, Permissible Extent of Riparian Land, 7
Land & Water L. Rev. 31, 57 (1972).
73. Restatement (2d), 850A, clause (1), comment m,
(citing Strobel v. Kerr Salt Co., 164 N.Y. 303, 58
N.E. 142 (1900)); State v. Michels Pipeline Constr.
Inc., 63 Wis. 2d 278, 217 N.W.2d 339 (groundwater),
modified, 63 Wis. 2d 278, 219 N.W.2d 308 (1974);
MacArtor v. Graylyn Crest III, Swim Club, Inc.,
41 Del. Ch. 26, 187 A.2d 417 (1963) (groundwater);
United States v. 531.13 Acres of Land, 244 F. Supp.
895 (W.D.S.C. 1965) (compensation due for public
taking of riparian right to use of river flow).
74. United States v. Gerlach Livestock Co., 339 U.S.
75. Restatement (2d), 850A, clause (1), comment m
(citing Furrer v. Talent Irrigation Dist., 258
Or. 494, 466 P.2d 605 (1970)).
76. Farnham, The Permissible Extent of Riparian Land,
7 Land & Water L. Rev. 31 (1972).
77. Rancho Santa Margarita v. Vail, 81 P.2d 533 (Cal.
1935); L. Kinney, The Law of Irrigation and Water
Rights 789 (2d ed. 1912).
78. Title Ins. & Trust Co. v. Miller & Lux, 190 P. 433
(Cal. 1920); 5 R. Powell, The Law of Real Property,
supra note 45, at 714.
79. Anaheim Union Water Co. v. Fuller, 88 P. 978
87. Johnson & Knippa, Transbasin Diversion of Water,
43 Tex. L. Rev. 1035, 1036 (1965); Recent Important
Decisions, Waters and Watercourses-Riparian Land-
Watershed, 20 Mich. L. Rev. 123 (1921). According
to Professor Waite the source of title test and one
version of the unity of title test are not concerned
with the watershed limitation. The other version
adds to the unity of title test the requirement that
the land lie within the watershed of the watercourse
to which it is riparian. Waite, Beneficial Use of
Water in a Riparian Jurisdiction, 1969 Wis. L. Rev.
864, 873. See also Sayles v. City of Mitchell, 245
N.W. 390 (S.D. 1932). Professor Clark declares
this to be the general rule. 1 Waters and Water
Rights 53.5(c) (R. Clark, ed. 1967). On the
other hand, Professor Casner contends that the unity
of title definition without the watershed limitation
is the general rule. 6A American Law of Property
S 28.55 (A.J. Casner, ed. 1954).
88. Hudson v. West, 306 P.2d 807 (Cal. 1957); Clark v.
Allaman, 80 P. 571 (Kan. 1905); Sayles v. City of
Mitchell, 245 N.W. 390 (S.D. 1932); Watkins Land
Co. v. Clements, 86 S.W. 733 (Tex. 1905); Miller
v. Baker, 122 P. 604, 605 (Wash. 1912).
89. Harrell v. City of Conway, 271 S.W.2d 924, 927
(Ark. 1954); Sturtevant v. Ford, 182 N.E. 560
(Mass. 1932); Stratton v. Mount Hermon Boy's
School, 103 N.E. 87 (Mass. 1913); McCarter v.
Hudson County Water Co., 65 A. 489, 494-95 (N.J.
1906); Virginia Hot Springs Co. v. Hoover, 130
S.E. 408 (Va. 1925); Town of Gordsonville v.
Zinn, 106 S.E. 508, 511 (Va. 1921); Comment, 34
N.C.L. Rev. 247, 247-48 (1956).
90. 2 H. Farnham, The Law of Waters and Water Rights
91. Anaheim Union Water Co. v. Fuller, 88 P. 978
(Cal. 1907); Note, Limitation on Diversions from
the Watershed: Riparian Roadblock to Beneficial
Use, 23 S.C.L. Rev. 43 (1971). Most industrial and
municipal uses return up to 90 percent of the water
diverted; some water used for irrigation is also re-
turned. Johnson & Knippa, Transbasin Diversion of
Water, 43 Tex. L. Rev. 1035, 1057 (1965).
92. Murphy, A Short Course on Water Law for the Eastern
United States, 1961 Wash. U.L.Q. 93, 94-95.
93. Martz, Water for Mushrooming Population, 62 W. Va.
L. Rev. 1, 11 (1959); O'Connell, Iowa's New Water
Statute-The Constitutionality of Regulating Existing
Uses of Water, 47 Iowa L. Rev. 549, 557 (1962); Note,
The Riparian Rights Doctrine in South Carolina, 21
S.C. L. Rev. 757, 769 (1969).
94. Marquis, Freeman & Heath, The Movement for New Water
Rights Laws in the Tennessee Valley States, 23 Tenn.
L. Rev. 797, 832 (1955).
95. Arkansas, Massachusetts, New Jersey, and Virginia.
96. Gillis v. Chase, 31 A. 18 (N.H. 1891); Lawrie v.
Sillsby, 74 A. 94 (Vt. 1909).
97. Waite, Beneficial Use of Water in a Riparian
Jurisdiction, 1969 Wis. L. Rev. 864, 875.
98. Metropolitan Util. Dist. v. Merritt Beach Co., 140
N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P. 855
(Ore. 1901); Texas Co. v. Burkett, 296 S.W. 273
99. Poire v. Serra, 106 A.2d 39 (N.H. 1954); Smith v.
Stanolind Oil & Gas Co., 172 P.2d 1002 (Okla. 1946);
Lawrie v. Sillsby, 74 A. 94 (Vt. 1909); Farnham,
The Improvement and Modernization of New York Water
Law Within the Framework of the Riparian System, 3
Land & Water L. Rev. 377, 413 (1968).
100. Note, Property Rights--Riparian Rights, 34 N.C.L.
Rev. 247, 251 (1956).
101. 6A American Law of Property, supra Note 47, S 28.56.
102. Metropolitan Util Dist. v. Merritt Beach Co., 140
N.W.2d 626 (Neb. 1966); Jones v. Conn, 64 P.2d
855 (Ore. 1901); Texas Co. v. Burkett, 296 S.W.
273 (Tex. 1927).
103. Lawry v. Sillsby, 74 A. 94 (Vt 1909); Poire v.
Serra, 106 A.2d 39 (N.H. 1954); Smith v.
Stanoline Oil & Gas Co., 172 P.2d 1002 (Okla. 1946).
104. Note, 34 N. Car. L. Rev. 247, 251 (1956).
105. Trelease, Coordination of Riparian and Approp-
riative Rights, 33 Tex. L. Rev. 24, 56-57 (1954).
106. Winchell v. Clark, 68 Mich. 64, 73, 35 N.W. 907,
913 (1888); Texas Co. v. Burkett, 117 Tex. 16, 25,
296 S.W. 273, 276 (1927); Hite v. Town of Luray,
175 Va. 218, 224, 8 S.E.2d 369, 371 (1940).
107. Davis, Australian and American Water Allocation
Systems Compared 9 B.C. Indus. & Com. L. Rev. 647,
108. Young v. City of Asheville, 241 N.C. 618, 86
S.E.2d 408 (1955); 5 R. Powell, supra note 45 at
109. 78. Duckworth v. Watsonville Water & Light Co.,
158 Cal. 206, 110 P. 927 (1910); Texas Company v.
Burkett, 117 Tex. 16, 296 S.W. 273 (1927); Note,
supra note 104, at 250.
110. Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909);
Roberts v. Martin, 72 W. Va. 92, 77 S.E. 535 (1913);
Heilbron v. Fowler Switch Canal Co., 75 Cal. 426,
432, 17 P. 535, 538 (1888); Kennebunk v. Maine
Turnpike Authority, 147 Me. 149, 84 A.2d 433 (1951);
Contra Gillis v. Chase, 67 -.H. 161, 31 A.18 (1891);
Lawrie v. Silsby, 82 V-. 505, 74 A.94 (1909); Note,
Are Water Rights Marketable in Wisconsin? 1966 Wis.
L. Rev. 942, 946, n. 18.
111. Pernell v. Henderson, 220 N.C. 79, 16 S.E.2d 449
(1941); Town of Purcellville v. Potts, 179 Va. 514,
19 S.E.2d 700 (1942); Webster v. Harris, III Tenn.
668, 69 S.W. 782 (1902); Ziegler, Acquisition and
Protection of Water Supplies by Municipalities, 57
Mich. L. Rev. 349, 357 (1954); Marquis, Freeman &
Heath, supra note 94, at 813.
112. Buescher, Appropriation Water Law Elements in
Riparian Doctrine States, 10 Buffalo L. Rev. 448,
113. Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600
(1902); St. Anthony Falls Water Power Co. v. St.
Paul Water Commissioners, 56 Minn. 485, 58 N.W. 33
(1894); Grogan v. Brownwood, 214 S.W. 522 (Tex. 1919);
Trelease, The Concept of Reasonable Beneficial Use
in the Law of Surface Streams, 12 Wyo. L. J. 1, 4
114. Davis, supra note 107, at 684.
115. Waite, supra note 81, at 875; Sibbett v. Babcock,
124 Cal. App. 567, 269 P.2d 42 (1954); S.O. & C. Co.
v. Ansonia Water Co., 83 Conn. 611, 78 A. 432 (1910);
Manier v. Myers & Johns, 43 Ky 514 (1844); Harmon
v. Carter, 59 S.W. 656 (Tenn. 1900); Martin v. Burr,
III Tex. 57, 228 S.W. 543 (1921); Kirk v. Hoge, 122
Va. 519, 97 S.E. 116 (1918); Town of Gordonsville v.
Zinn, 129 Ba. 542, 106 S.E. 508 (1921).
116. Northern California Power Co. v. Flood, 186 Cal.
301, 199 P. 315 (1921); 5 R. Powell, supra note 31,
at para. 720.
117. Buescher, supra note 37, at 452.
118. Harnsberger, Prescriptive Water Rights in
Wisconsin, 1961 Wis. L. Rev. 47 48-49.
119. Shellow v. Hagen, 9 Wis.2d 506, 101 N.W.2d 694
120. Harnsberger, supra note 118, at 61.
121. Stewart v. White, 128 Ala. 202, 30 So. 526
(1901); Moal v. Boyd, 116 Tex. 82, 286 S.W. 458
(1926); Rhoades v. Barnes, 54 Wash. 145, 102 P.
122. Illinois Steel Co. v. Bilot, 160 Wis. 218, 151
N.W. 258 (1915).
123. At common law there was no fixed period of
perscription but the courts by analogy followed
the statute of limitations for adverse possession.
2 American Law of Property, supra note 47, at
S 8.52. The common law period is twenty years,
but in most states the prescriptive period is
determined by statute.
124. Alta Land & Water Co. v. Hancock, 85 Cal. 219,
24 P. 645 (1890); Harmon v. Carter, 59 S.W.
656 (Tenn. 1900).
125. Harnsberger, supra note 118, at 65.
126. Illinois Steel Co. v. Bilot, 109 Wis. 418,
446, 85 N.W. 402, 408 (1901).
127. 5 R. Powell, supra note 31, at para. 720.
128. Anaheim Water Co. v. Semi-Tropic Water Co., 64
Cal. 185, 30 P. 623 (1883); Preston v. Clark,
238 Mich. 632, 214 N.W. 226 (1927); Schulenberg
v. Zimmerman, 86 Minn. 70, 90 N.W. 156 (1902);
Hanks, supra note 33, at 630.
129. Smith v. McElderry, 220 Ala. 342, 124 Sl. 896
(1929); Tinker v. Bessel, 213 Mass. 74, 99 N.E.
130. 56 Am. Jur., Waters S 337 (1947); 93 C.J.S.,
Waters 185 (1956); contra Burkman v. City of New
Lisbon, 246 Wisc. 547, 19 N.W.2d 311 (1945).
131. Harnsberger, supra note 118, at 78-79.
132. Burkman v. City of New Lisbon, 246 Wis. 547, 19
N.W.2d 311 (1945).
133. 20 So. 780 (Fla. 1896).
134. 46 So.2d 392 (Fla. 1950).
135. 46 So.2d at 394.
136. 102 So.2d 833 (2d DCA Fla. 1958).
137. See Chapter 2, infra.
138. Cooper & Stringfield, Ground Water in Florida,
Fla. Geol. Surv. Info. Cir. No. 3, at 1 (1950).
139. Figure 1 is taken from Florida Water Resources
Study Comm'n, Florida's Water Resources Report
to the Governor of Florida & 1957 Legislature 36
(1956) [herinafter cited as Florida's Water
140. Figure 2 is taken from Hendry & Lavender, Final
Report on an Inventory of Flowing Artesian Wells
in Florida, Florida Geol. Surv. Cir. No. 21, at
141. Figure 3 is taken from Hendry & Lavender, Final
Report on an Inventory of Flowing Artesian Wells
in Florida, Florida Geol. Surv. Cir. No. 21, at
142. Figure 4 is taken from Hendry & Lavender, supra,
143. See Ferguson, Linghas, Love & Vernon, Springs of
Florida 32-33, 124-25 (Fla. Geol. Surv. Geol.
Bull. No. 31, 1947).
144. Critchlow, Policies an1 Problems in Controlling
Ground Water Resources, 40 Am. Water Works Ass'n
J. 775 (1948).
145. Figure 5 is taken from Florida's Water Resources,
supra note 139, at 39.
146. Id. at 66.
147. Id. at 40.
148. See Hendry & Lavender, supra note 140, at 13.
149. Id. at 14, 17.
150. Figure 6 is taken from Florida's Water Resources,
supra note 139, at 47.
151. Id. at 47; Black, Brown & Pearce, Salt Water
Intrusion in Florida-1953 (1953).
152. Florida's Water Resources, supra note 139, at 47-
153. Fla. Stat. SS 373.021-373.061 (1977). See also
Hendry & Lavender, supra note 140, at 18.
154. See discussion in Chapter 2.
155. Fla. Stat. S 373.194 (1977).
156. See discussion in Chapter 4.
157. Tampa Waterworks Co. v. Cline, 20 So. 780
158. Thomas, Conservation of Ground Water 248 (1951).
159. Frazier v. Brown, 12 Ohio St. 294, 311 (1861).
160. Tampa Waterworks Co. v. Cline, 20 So. 780 (Fla.
161. See Koch v. Wick, 87 So.2d 47 (Fla. 1956).
162. Tampa Waterworks v. Cline, 20 So. 780 (Fla.
163. Id. at 782
164. E.g. Tampa Waterworks Co. v. Cline, 20 So. 780
(Fla. 1896); Stoner v. Patten, 63 S.E. 897
(Ga. 1909); Clinchfield Coal Corp. v. Compton,
139 S.E. 308 (Va. 1927).
165. Tampa Waterworks Co. v. Cline, 20 So. 780
166. Maricopa County Municipal Water Conservation
Dist. v. Southwest Cotton Co., 39 Ariz. 65, 87,
4 P.2d 369, 377 (1931) (dictum); Hale v. McLea,