Village of Tequesta v. Jupiter Inlet Corp.

• Decision Date: 03 May 1979
• Docket Number: No. 52223,52223
• Citation: 371 So.2d 663
• Court: Florida Supreme Court
• Parties: The VILLAGE OF TEQUESTA, etc., et al., Petitioners, v. JUPITER INLET CORPORATION, etc., Respondent.

Page 663

371 So.2d 663

The VILLAGE OF TEQUESTA, etc., et al., Petitioners, v. JUPITER INLET CORPORATION, etc., Respondent.

No. 52223.

Supreme Court of Florida.

May 3, 1979.

Rehearing Denied June 26, 1979.

John C. Randolph of Johnston, Sasser & Randolph, West Palm Beach, for petitioners.

Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for respondent.

Robert Grafton, Thomas J. Schwartz, John H. Wheeler and Stephen A. Walker, West Palm Beach, amicus curiae for South Florida Water Management District.

John T. Allen, Jr., St. Petersburg, amicus curiae for Pinellas County.

Louis de la Parte, Jr., Tampa, amicus curiae for West Coast Regional Water Supply Authority.

Jacob D. Varn, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, amicus curiae for Pasco County, S. C. Bexley, Jr., L. S. B. Corporation, and Angeline Corporation.

John F. Wendel, of Wendel, Broderick & Chritton, Lakeland, amicus curiae, for Citrus County.

ADKINS, Justice.

Pursuant to article V, section 3(b)(3), Florida Constitution, the Fourth District Court of Appeal in Jupiter Inlet Corp. v. Village of Tequesta, 349 So.2d 216 (Fla. 4th DCA 1977) certified to this Court as a matter of great public interest the following question:

Can a municipality be held responsible through inverse condemnation for a taking, from private ownership for public purposes, of underground shallow aquifer water, to the extent that the owner is deprived of the beneficial use of the aquifer?

Jupiter Inlet Corporation, plaintiff in the trial court, will be referred to as Jupiter, and The Village of Tequesta, defendant in the trial court, will be referred to as Tequesta.

Jupiter owned property near Tequesta on which it planned to build a 120-unit condominium project, "Broadview." This property was located approximately 1200 feet from Tequesta's well field number four. This well field contained seven wells, seventy-five to ninety feet deep, which pumped in excess of a million gallons of water a day from the shallow water aquifer to supply Tequesta residents with water. It was relatively inexpensive to withdraw water from the shallow-water aquifer.

As a result of the excessive amount of water withdrawn by Tequesta from the shallow-water aquifer, the fresh-water supply was endangered and salt water from the intercoastal waterway intruded into the shallow-water aquifer. There was testimony from a hydrologist that saltwater intrusion was caused by a reduction in the water levels in the interior to a point low enough that the fresh-water level could not withstand the pressure of the saltwater level in the intercoastal. The water which Tequesta withdrew came from the shallow-water aquifer beneath its property. Because Tequesta would not supply Jupiter water, it was necessary for Jupiter to secure a special exception from the county. Tequesta opposed the permit application and it was denied. Jupiter was not permitted to drill wells to withdraw water from the shallow-water aquifer because of the endangered condition of the aquifer due to the excessive withdrawals made by Tequesta.

The only means by which Jupiter could supply water to its property was to drill a well to the Floridan aquifer located 1200 feet below the surface, at a substantially greater cost.

Jupiter instituted an action for inverse condemnation and injunction due to the excessive pumping by Tequesta. The theory of Jupiter's action was that due to depletion by Tequesta of the shallow-water aquifer beneath its property Jupiter was effectively deprived of the beneficial use of its property rights in the shallow-water aquifer.

Considering any factual conflicts in the light most favorable to Jupiter, the trial judge granted a summary judgment in favor of the Village of Tequesta. Viewing the facts in the same light as did the trial court, the district court of appeal said:

The owner has been deprived by government action of the use and enjoyment of what was his, and so through a suit in inverse condemnation he can compel the government to pay for what it has taken.

349 So.2d at 217. The district court of appeal then certified the above question to this Court for consideration.

The following hydrological statements are fully supported by F. Maloney, S. Plager, and F. Baldwin, Water Law and Administration, page 141 (1968) (hereinafter referred to as Water Law ) as well as the discussion in City of St. Petersburg v. Southwest Florida Water Management District, 355 So.2d 796 (Fla. 2d DCA 1977).

Water-bearing zones under the earth's surface capable of receiving, storing, and transmitting water are called aquifers. Most aquifers in Florida are cavernous limestone or sand and shale beds. Aquifers are separated by relatively impervious layers of shales and clays which are called aquicludes.

There are two basic types of acquifers. One is the unconfined aquifer associated with the water table. It is free to rise and fall with the amount of rainfall and other surface-water influences such as rivers, lakes, irrigation, etc. Near the coast the water level in this aquifer fluctuates with the tidal action. It is referred to as the ground-water aquifer, water-table aquifer, and the shallow aquifer.

The other type of aquifer is an artesian aquifer. Water in this aquifer is confined within aquicludes. Water will either not pass through these aquicludes or will do so at a much slower rate than it can travel within the aquifer itself. Water enters artesian aquifers slowly through the surrounding aquiclude by virtue of fissures, sinkholes, or other openings in the aquiclude. Water in the artesian aquifer is under pressure. One artesian aquifer is known as the Floridan aquifer. It underlies most of the state and furnishes most of the well-water supplies of the state.

In an early decision, Tampa Watchworks Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896), we made a classification of water passing over or through lands as follows:

(1) In respect to surface streams which flow in a permanent, distinct, and well-defined channel from the lands of one owner to those of another; (2) in respect to surface waters, however originating, which, without any distinct or well-defined channel, by attraction, gravitation, or otherwise, 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 proprietor; (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.

20 So. at 782.

Although we classified water as if its different physical states were separate and distinct, we recognize that these classes are interrelated parts of the hydrologic cycle. We are primarily concerned in this case with the rights of landowners in the shallow-water aquifer.

Ancient law gave no special consideration to ground water, treating all water like the air, the sea, and wild animals, as the property of no one or the property of everyone. Trelease, Government Ownership and Trusteeship of Water, 45 Calif. Law Review 638, 640 (1957). Technological ignorance about the existence, origin, movement and course of percolating ground waters resulted in the so-called "English rule" which essentially allowed a land owner to take or interfere with percolating waters underlying his land, irrespective of any effects his use might have on ground water underlying his neighbors' lands. This doctrine, first enunciated in 1843 in an English case, Acton v. Blundell, 152 Eng.Rep. 1235 (1843) was based upon the maxim, "To whomsoever the soil belongs, he owns also to the sky and to the depths." See Water Law at 155. With the growth of hydrological capabilities in pumping technology, the English rule was repudiated in most American jurisdictions. See Annots. 29 A.L.R.2d 1354, 1361-65 (1953); 109 A.L.R. 395, 399-403 (1937); 55 A.L.R. 1385, 1398-1408 (1928), and cases cited therein. The so-called "American," or "reasonable use," rule rejected the "to the sky and to the depths" notion for another maxim, "use your own property so as not to injure that of another." See Koch v. Wick, 87 So.2d 47 (Fla.1956); Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (Fla.1917); Bassett v. Salisbury Manufacturing Co., 43 N.H. 569 (1862). The reasonable use rule adopted by most Eastern states, including Florida, was stated by one court as follows:

(A) landowner, who, in the course of using his own land, obstructs, diverts, or removes percolating water to the injury of his neighbor . . . must be (making) a reasonable exercise of his proprietary right, i. e., such an exercise as may be reasonably necessary for some useful or beneficial purpose, generally relating to the land in which the waters are found.

Finley et ux. v. Teeter Stone, Inc., 251 Md. 428, 435, 248 A.2d 106, 111-12 (Md.App.1968). See also Water Law at 158.

In applying the reasonable use rule this Court has not given definite answers as to the actual amount of water that may be taken by overlying land owners, nor have we considered the meaning of the term "ownership" as applied to percolating water.

In 93 C.J.S. Waters section 90, page 765 (1956), the rule is stated thus:

There can be no ownership in seeping and percolating waters in the absolute sense, because of their wandering and migratory character, unless and until they are reduced to the actual possession and control of the person claiming them. Their ownership consists in the right of the owner of the land to capture, control, and possess them, to prevent their escape, if he can do so, from his land, and to prevent strangers from trespassing on his land in an effort to capture, control, or possess them. If percolating waters escape naturally to other lands, the title of the former owner is gone; while a landowner may prevent the escape of such waters from his land, if he can do so, yet he has no right to follow them...