Tilden v. Smith

• Decision Date: 01 August 1927
• Citation: 94 Fla. 502,113 So. 708
• Parties: TILDEN et al. v. SMITH.
• Court: Florida Supreme Court

113 So. 708

94 Fla. 502

TILDEN et al. v. SMITH.

Florida Supreme Court, Division A.

August 1, 1927

Suit by L. W. Tilden and others against C. F. Mather Smith for an injunction. From a judgment for defendant, complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Statute held not intended to prevent landowner from sinking well connecting with subterranean waters to lower overflowing lake to normal level (Rev. Gen. St. 1920, §§ 1190, 1191; Acts 1913, c. 6456). It was not the purpose of section 1190, Rev Gen. Stats. 1920, to prevent an owner of lands fronting on a lake whose waters had risen to an abnormally high level by reason of unusually heavy rainfall, causing overflow of his lands and serious damage therto as well as the lands of others abutting on such lake, from sinking a well on his property connecting with the subterranean waters of the state for the purpose of lowering the waters of said lake to their normal and customary level.

Intention of statute is to prevent lowering of normal level of lake below ordinary high-water mark (Rev. Gen. St. 1920, § 1190). It was the evident intention of section 1190, Rev. Gen Stats. 1920, to prevent the lowering of the normal level of a lake below its ordinary or average high-water mark.

In ascertaining average high-water mark of lake, evidence as to vegetation on banks is admissible (Rev. Gen. St. 1920, §§ 1190, 1191). In ascertaining the normal level and average high-water mark of a lake, evidence may be introduced as to the character of the vegetation upon its banks.

Appeal from Circuit Court, Orange County; C. O Andrews, judge.

COUNSEL

E. W. & R. C. Davis, of Orlando, for appellants.

Massey, Warlow & Carpenter, of Orlando, for appellee.

OPINION

BROWN J.

The appellants filed their bill in the court below to enjoin the appellee from lowering the waters of Lake Johns, one of the smaller lakes located in the lake region of central Florida, which, owing to very heavy rainfall, had overflowed his property and the property of some of his neighbors, causing destruction of citrus groves, the submerging of appellee's golf course, the killing of pine and other trees of natural growth, and other property damage.

The bill alleges that the appellants are all owners of property abutting on Lake Johns, which is of greater area than two square miles and not included wholly within any drainage district created by chapter 6456, Acts of 1913, or acts amendatory thereof, or any other laws of the state of Florida; that appellee had caused to be drilled upon his property on the eastern margin of the lake a deep well to drain off the waters of said lake into the underground waters of the state of Florida, so as to lower the level of the lake, and had obtained from the state board of health a permit to do this; that the appellee had not obtained the written consent of all owners of property abutting on or bounded by said lake so to do; and that such acts of the defendant were in violation of the laws of the state of Florida and an infringement upon the rights of appellants.

The answer of the appellee admitted that he was drilling a deep well upon his property, but denied that it was for the purpose of reducing the natural level of the lake below the point which the growth and vegetation on the margin indicated to be the ordinary high-water point of the lake. The answer further alleges that during the past two years and more, especially within the last six months of the year in which the answer was filed, there had been excessive rains which had caused the lake to rise above its natural boundaries and to flood the adjacent territory, particularly appellee's property known as the West Orange Country Club, which, constructed during a period of eight years at great expense, was flooded and rendered practically worthless, and the several residences erected thereon were no longer fit for habitation owing to the flooded condition of the land. The answer also alleged that appellee's well was situated at a point higher than the level of the lake when within its natural boundaries.

The bill did not waive answer under oath, and the answer was sworn to. On application for injunction, the cause was heard on testimony taken before the chancellor in person and several affidavits submitted by the parties. The chancellor denied the injunction and the complainants took this appeal. This bill was evidently filed with reference to sections 1190 and 1191, Rev. Gen. Stats., derived from an act of 1915. These two sections read as follows:

'1190. It shall be unlawful for any person, persons, firm or corporation to drain or draw water from any lake of greater area than two square miles so as to lower the level thereof without first obtaining the written consent of all owners of property abutting on or bounded by said lake: Provided, however, that this article shall not apply to any lake included wholly within any drainage district created by chapter 6456, Acts of 1913, Laws of Florida, or acts amendatory thereof, or under any other laws of the state of Florida.

'1191. Courts of chancery shall entertain suits by persons claiming to own lands abutting on or bounded by lakes in the state of Florida, of greater area than two square miles, to enjoin any person, persons, firm or corporation from draining or lowering the level of such lake.'

While the testimony was in conflict on some important points, there was evidence tending to show that Lake Johns, which was about seven miles long and about two or three miles wide, was not fed by underground springs as so many Florida lakes are, but by the rainfall in the vicinity of the lake, which had no streams running into or our of it. That there was considerable variation in the average maximum high-water mark of the lake during a series of unusually dry years as compared with a series of unusually wet years, but nevertheless the character of the vegetation and trees around the lake gave some evidence of an average or ordinary high-water mark, and indicated that the water level at the time appellee sunk his well was considerably above such average level of the lake as so indicated. See Martin et al., Trustees, etc., v. Busch, 112 So. 274, decided at the January term, 1927. The appellants were owners of property abutting on the lake, but so far as the evidence shows had not suffered like some of their neighbors, including appellee, from the unusually high water in the lake. The appellee was likewise the owner of considerable property abutting on the lake, which he used as a country club with a golf course, clubhouse, cottages for rent, etc., which cost him in the neighborhood of $150,000, and had yielded him some revenue before the property was flooded by the rise of the lake. That appellee began these improvements in May, 1915, at which time he had a survey made; that trees about the lake at that point then showed that the water had not been there for a great many years and the level of the lake was about 5 1/2 feet below the surface of the adjacent land, on which there were trees about 35 years old. That Lake Johns maintained its then level until about 1923, when owing to heavy rains it began to rise, and during the equinoctial storms of 1923 it rose during that month alone 15.2 inches. During 1923 and 1924 the waters rose about 7 feet and at the time the testimony was taken in December, 1924, appellee's golf course was submerged, the water was up to the clubhouse porch, where boats were tied, and all cottages or guest houses except one were uninhabitable. That a Mr. Hart who had homesteaded land nearby abutting on the lake, in 1920, and had resided on it for 3 1/2 years, had been compelled to abandon it, the water covering the floor of his house 1 1/2 inches and killing several hundred trees on his place. That a tract which had been used as an aviation field by the government in 1917-18 was submerged, and that on Mr. Seegar's grove, on the east side of the lake, the water had killed about 100 orange trees, 20 years old, and nearly 800 small trees. That a Mr. Brock, who had bought Turkey Island in Lake Johns, in 1918, and used it mostly for trucking, had planted some 300 fruit trees and 100 Avocado pear trees. That the water in Lake Johns was then about 7 feet lower than at the time of his testimony; that the lake had flooded 3 acres of his vegetable land, had killed a dozen orange trees, and injured many more which would probably die unless relief was afforded; that his boathouse, which 2 years before he could enter standing upright in his boat, was completely submerged and his pumphouse flooded. One Arthur Speir deposed that he had lived on Lake Johns since 1881, and that the water was now several feet higher than it had been since that date; that there were pine trees 15 inches in diameter standing in the water of Lake Johns at the time of his affidavit; that pine trees were readily killed by standing water, and that if at any time prior to the present the waters had risen for any length of time so as to cover the ground on which the trees were standing, the trees would have died. The affidavit of C. S. Brock said that the present condition was absolutely abnormal; that he had known Lake Johns and Turkey Island for over 30 years, and that the lake had never before done any damage to his knowledge. Mr. S. J. T. Seegar, witness for the defendant, testified that he had known Lake Johns for 37 years and had never seen the level of it so high as at persent; that the high water had killed about 100 of his trees, 20 years old, and had seriously damaged nearly 800 smaller trees.

There was testimony for the complainants to the effect that they had lived for a great many years on their lands adjoining the lake and had selected their locations with...