Tampa Waterworks Co. v. Cline

• Decision Date: 19 May 1896
• Citation: 20 So. 780,37 Fla. 586
• Parties: TAMPA WATERWORKS CO. v. CLINE.
• Court: Florida Supreme Court

20 So. 780

37 Fla. 586

TAMPA WATERWORKS CO. v. CLINE.

Florida Supreme Court

May 19, 1896

Appeal from circuit court, Hillsborough county; H. L. Mitchell Judge.

Bill by the Tampa Waterworks Company against George W. Cline, Sr. and George W. Cline, Jr., for injunction. On the junior's death, an amended bill was filed against the survivor. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. The proprietor or owner of land bordering on a surface stream of water flowing in a well-defined channel has, in the absence of any modification of relative rights by contract legislative grant, or prescription, the right to receive the water of the stream from the proprietor above substantially undiminished in quantity and uncorrupted in quality; and this right exists, not from any supposed grant or prescription but ex jure nature, and as an incident to the soil, and for the reason that surface streams of flowing water are the gift of Providence, for the benefit of all lands through which they flow, and, as such, their usufruct is appurtenant to such lands.

2. The right to the benefit and advantage of the water in surface streams flowing in well-defined channels past one owner's land is subject to the similar rights of all the proprietors on the banks of the stream to a reasonable use and enjoyment of a natural bounty; and it is only for an unauthorized and unreasonable use that one proprietor can have a just cause of complaint against another.

3. The benefit and advantage of surface water flowing in well-defined channels to an adjoining land proprietor extends certainly to the supplying natural wants, including the use of the water for domestic purposes of home and farm, such as drinking, washing, cooking, or for stock; and a reasonable use of the water for such purposes may be made.

4. The owner of land through which subsurface water, without any distinct, definite, and known channel, percolates or filters through the soil to that of an adjoining owner, is not prohibited from digging into his own soil, and appropriating water found there to any legitimate purposes of his own, though, by so doing, the water may be entirely diverted from the land to which it would otherwise naturally have passed; but, if subterranean water has assumed the proportions of a stream flowing in a well-defined channel, the owner of the land through which it flows will not be authorized to divert it, pollute it, or improperly use it, any more than it the stream ran upon the surface in a well-defined course.

5. The only difference in the application of the law to surface and subsurface streams is in ascertaining the character of the stream. If it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they will be presumed to be formed by the ordinary percolations of water in the soil; such presumption being necessary on account of the difficulty in determining whether the water flows in a channel beneath the soil.

6. A stream or water course consists of bed, banks, and water; and, to maintain the right to a water course, it must be made to appear that the water usually flows in a certain direction, and by regular channel, with banks or sides, and having a substantial existence; but it need not be shown that the water flows continually, as it may be dry at times.

7. The fact that a corporation was chartered for the purpose of supplying a certain city and its inhabitants with water, and is under a contract with the city to supply it and the people therein with water, does not give the corporation any additional right to use or appropriate the water in a well-defined stream flowing over or through lands of different landowners.

8. Applying the principles of law stated in the foregoing headnotes to the facts of the present case, the decree of the chancellor dismissing the bill of complaint is affirmed.

COUNSEL

Sparkman & Sparkman, for appellant.

W. A. Carter, for appellee.

The original bill filed in this case was by the Tampa Waterworks Company against George W. Cline, Sr., and George W. Cline, Jr., and subsequently an amended bill was filed against George W. Cline, Sr., the junior having died in the meantime.

From the amended bill, it appears that the waterworks company is a Florida corporation, organized for the purpose of furnishing the city or Tampa with water for fire, sanitary, and domestic purposes, and was under a contract with the city to furnish it, for the term of 30 years, with abundant supply of good water for the purposes mentioned, and for all purposes; that, in order to carry out said contract, the corporation had acquired the title in fee to lots 6 and 7 in block 23 in the First addition to Highland Park, in the S 1/2 of lot 1, section 13, township 29 S., range 18 E., according to the plan and map made by Brown and Swingley, and made an exhibit to the bill; that said lots were originally a part of a much larger tract of land, owned by one James T. Magbee, deceased, and that his heirs and distributees had laid off said tract into lots and blocks, with streets and alleys, all within the corporate limits of the city of Tampa; that said lot 6 has issuing from underneath the ground thereon a natural spring of water, which is supplied by a well marked and defined subterranean stream coming from the east, and flowing underneath the ground, 12 or 15 feet below the surface, on land of defendant and complainant, until it issues out of and forms the spring upon said lot 6, where it again disappears beneath the surface, but comes out again a few feet from the western boundary of complainant's land, and flows thence in a stream in a westerly course to the Hillsborough river, some 200 feet away; that complainant and those under whom it claims have held the land out of which said spring rises for a period of more than 17 years, during which time it has been highly prized by the owners for the purity of its water, which has been considered good and useful for sanitary and domestic purposes, and, if maintained in its present state of purity, will continue to be useful, and particularly so to complainant, under its obligation to the said city to supply it with water; that defendant George W. Cline, Sr., with the intention to harass and injure complainant, had recently, and since complainant purchased its land, acquired title to lots 1, 8, 9, and 10, in block 23, immediately above complainant's land, and was proceeding to excavate, and had excavated, a large and deep hole on his lot 8, near the eastern boundary of complainant's lot 7, said hole being something like 18 or 20 feet in circumference, and some 12 or 14 feet deep, and which penetrates to the water of said subterranean stream. It is charged that, in making said excavation, defendant acted wantonly and maliciously, and for the purpose of injuring complainant, by polluting the water flowing into said spring, and by diminishing the flow thereof, which object will be accomplished if said excavation is continued or permitted to remain. Upon information and belief, it is charged that defendant intended, if not restrained from doing so, to put up a bathing pool or pools in said stream where said excavation is made, and to use the water in such way as to pollute and diminish the same, with the view to damage complainant, or compel it to purchase the land at an exorbitant price; that to carry out the contract with the city of Tampa, comprising some eight or ten thousand inhabitants, and growing, it was necessary that complainant be able at all times to obtain a large supply of pure, fresh water, which it could not do, without great expense and trouble, from any other other source, and that said spring would furnish the necessary water if kept in its present state of purity and flow; that complainant had expended large sums of money, and spent much time, in drilling a well in said city, but had failed to secure such a flow, or sufficient flow, of water for the purposes mentioned, and it had been compelled to seek some other source of supply, and that at no other place except at said spring could such a supply of pure, fresh water be found without going to some fresh-water lake, some five miles distant from the city; that, if defendant was permitted to go on with said excavation, the waters of the spring, now pure and useful for complainant's purposes in supplying the city with water, would become polluted and totally worthless to it, so that the same could not be used by it nor the people of Tampa for the purposes for which complainant purchased said land; that said water runs underneath and between a rock formation, the top of which rock is some six feet below the surface, and extends down until said subterranean stream is reached, and, without said excavation being made, it is not liable to be injured or polluted until it comes out upon complainant's land, but which can and will be thoroughly protected by complainant when its waterworks are put up and established.

The injunction asked for was that defendant be stopped from proceeding with the excavation, and that he be compelled to fill up what had been excavated, in a way not to injure the stream. A temporary injunction as prayed for was granted upon the filing of the original bill.

Defendant answered after the amended bill was filed. The answer alleges that the S. 1/2 of lot 1, section 13, township 29 S., range 18 E., belonged for many years to James T. Magbee, who conveyed in 1885, to the wife of defendant, seven acres in the southeast corner of the lot; that Magbee died seised of the remainder of the lot, which had recently been laid off into lots, blocks, and streets; that W. A. Jeter and G. A Boardman purchased, by mesne conveyances ...