Lamb v. Dade County, 63-151

• Decision Date: 14 January 1964
• Docket Number: No. 63-151,63-151
• Citation: 159 So.2d 477
• Parties: J. J. LAMB and Biltmore Village, Inc., a Florida corporation, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 477

159 So.2d 477

J. J. LAMB and Biltmore Village, Inc., a Florida corporation, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.

No. 63-151.

District Court of Appeal of Florida, Third District.

Jan. 14, 1964.

George C. Simpson; Hudson, McNutt, Campbell & Isom, Miami, for appellants.

Darrey A. Davis, County Atty. and William W. Gibbs, Asst. County Atty., for appellee.

Before BARKDULL, C. J., and TILLMAN PEARSON and HENDRY, JJ.

PER CURIAM.

The appellants, defendants in the trial court, appeal an adverse final decree which required them to remove certain obstructions placed in a canal and enjoined them from further interfering with the normal flow of the water in the canal, and granted the appellee the right to enter upon the waterway [which existed upon a private right-of-way] and upon private abutting land for the purpose of cleaning same. Said decree also denied the appellants' effort to require the county to remove a dam which it had erected downstream in the canal approximately 17 years earlier. In his final decree, the chancellor made the following findings of fact and adjudications in part:

'* * *

'This cause involves a determination of the extent of the respective rights of the litigants in respect to the public and private use of a portion of the Coral Gables Canal. The County seeks injunctive relief requiring the defendants to remove obstructions placed in such canal which prevent the flow of waters, and enjoining defendants from interfering with the maintenance and cleaning of the canal by the County. The defendants contend they are entitled to control the use of the portion of the canal owned by them, and they seek to compel the County to remove and relocate a salt barrier facility placed at a publicly owned location in the canal, which is claimed to adversely affect the defendants' water rights and property.

'There is no disagreement that the Coral Gables Canal (or the portion thereof involved in this controversy) is presently in a deplorable condition and badly in need of maintenance and cleaning work for protection of the public health, safety and welfare. The parties are in disagreement as to the cause for such condition. The County declares that it is prepared to rectify such condition immediately if permitted to do so.

'The Court finds from the testimony and evidence that the Coral Gables Canal, extending from the Ta-Miami Canal to Biscayne Bay, constitutes an integral part of the established and approved county-wide system of primary drainage and water control facilities developed and operated in joint cooperation between the Federal Government, the Central and Southern Florida Flood Control District, and Dade County for the purpose of removal of surplus water in time of flood and the distribution of the available supply of fresh ground water in dry times. Salinity dams have been placed in all of the canals comprising the primary water control system for Dade County, including the Coral Gables Canal, as a water conservation measure to prevent overdrainage, and intrusion of salt water along the canal channels and consequent contamination of the fresh ground water which is the source of all public and private water supply. The salinity dam in the Coral Gables Canal affords protection to the Alexander Orr well field operated by the City of Miami, as well as the fresh ground water supply westerly thereof.

'The Coral Gables Canal has been utilized for more than 35 years for drainage, water control and water conservation purposes as an integral part of the promary county-wide system. The canal is publicly owned, except for a portion thereof extending from the vicinity of the Palmetto Expressway to S.W. 62nd Avenue. Title to this middle section of the Coral Gables Canal has been reserved by the defendant, Biltmore Village, Inc. and has never been dedicated to the public use. The defendants are assessed County taxes on this section of the canal. The County has periodically maintained and cleaned the section of the canal owned by the defendant continuously since 1949 until recently when the defendants refused to permit further maintenance work on such section of the canal. Moreover, the defendants constructed a dam across the canal which prevents the flow of all water, and the defendants also obstructed drainage facilities constructed by the State Road Department to control the flow of water from the Palmetto Expressway into the Coral Gables Canal. These obstructions were placed in the section of the canal owned by the defendants. The testimony and evidence establishes that such dam has adversely affected the salinity controls and jeopardizes the well fields operated by the City of Miami, and has been a contributing factor to the present condition of the canal.

'It is universally held as a general principle of law of waters governing water courses that the proprietor below has the right to receive from the proprietor above the usual flow of water substantially undiminished in quantity, and that the upper proprietor has no right unreasonably to interrupt or obstruct the natural flow of water...