Groover v. A.B.E. Options, Inc.

No. 2-350 (Fla. Cir. Ct. December 10, 1970)

Petition for the establishment of a drainage district which would allow drainage of marshland for dairy farming denied, because the establishment of the district would impinge upon riparian rights of landowners within and below the district, including the Everglades National Park, and would be contrary to the Declaration of Rights of the Florida Const. art. 1, § 2 and to the U.S. Const. amend. V and XIV.

Counsel for J. Edwin Groover:
Nicholson, Howard, Brawner
and Lovett
Security Trust Building
Miami, Florida 33131
(305) 377-4008

Counsel for Respondents:
John D. Christie
608 Ainsley Building
Miami, Florida 33132
(305) 373-2683

Counsel for National Audubon Society:
Paul and Thomson
1314 1st National Bank Building
Miami, Florida 33131
(305) 371-5461

[1 ELR 20095]

Lopez. C.C.J.

ORDER DISMISSING PETITION

The Court, having examined the pleadings filed in this cause, having heard argument of counsel and having heard extensive testimony during a hearing in the above styled matter, having reviewed memoranda filed on behalf of the respective parties and being otherwise fully advised, makes the following findings of fact and conclusions of law:

Findings of Fact

1. Petitioners failed to show by competent evidence that they represented and had obtained written approval or consent from the owners of a majority of acreage of lands within the proposed drainage district.

2. Petitioners admit that the purpose of the creation of the district is to use the land for dairy farming. Petitioners have conclusively shown by their witnesses' testimony that it would not be to the advantage of the owners of the real property in the proposed drainage district to establish such a district for this purpose:

(a) For economical dairy farming of this area the land would have to be improved. It would require a minimum of 100 acres of improved land for dairy farming, since each cow requires an acre of improved land for grazing and at least 100 cows are necessary for an economical dairy farm.

(b) Although it is estimated that it would cost Petitioners $75 per acre to drain the land for the purpose of the proposed district, this amount does not include pasture improvements such as disking and seeding necessary for dairy farming.

(c) Only several sections within the area can be used for grazing and certain pine land areas must be reserved for protection of cattle and cannot be cleared for grazing purposes.

(d) There is no proof whatsoever that the small owners would consent to such use of their land and there is no showing that there are owners within the proposed district who have the necessary amount of land in those sections suitable for dairy farming.

3. The establishment of the proposed district would prevent land owners from enjoying the use of their land in its natural state as they purchased it, since it would prevent the natural flow of water on their lands. Many landowners object to the drainage district proposed because they wish to use their land in its natural state for hunting, fishing and recreational and naturalist purposes.

4. The evidence shows that it would not be in the interests of the public health, convenience or welfare for the proposed district to be established. Uncontradicted testimony shows:

(a) Establishment of the proposed drainage district would irrevocably interrupt the natural sheet flow of water which exists in this area. The establishment of this district would thus result in a change in the natural food chain which would be detrimental to fish and wildlife in the area and in areas dependent upon the proposed drainage district area for water supply. These areas include lands owned by the State of Florida, the Everglades National Park and the coastal waters of southwest Florida.

(b) The establishment of dairy farming operations in the proposed drainage district would pollute the quality of water flowing into the lands owned by the State of Florida, the Everglades National Park and eventually the coastal waters of southwest Florida. Such water pollution would destroy parts of the food chain and detrimentally affect the breeding grounds of fish and wildlife in the area of the proposed district, surrounding lands of the State of Florida, the Everglades National Park and the coastal zone of southwest Florida. This would result in the destruction of a number of valuable species of sport and commercial sea life.

(d) The proposed drainage district could seriously affect the water supply of southwest Florida.

Conclusions of Law

1. The drainage district and the improvements to be made thereunder will not be to the advantage of the owners of the real property within the proposed drainage district.

2. The proposed drainage district is contrary to the interest of the public health, convenience or welfare.

3. The establishment of the proposed drainage district would violate the riparian rights of the landowners within and below the district, including the lands owned by the State of Florida and Everglades National Park.

4. The establishment of the proposed drainage district would be contrary to Article 1 Section 2 of the Declaration of Rights of the Constitution of the State of Florida.

5. The establishment of the proposed drainage district would be contrary to the Fifth and Fourteenth Amendments of the United States Constitution which preclude any State from depriving "any person of life, liberty or property without due process of law."

Therefore it is Ordered as follows:

1. That the land which is the subject matter of the Petition in this matter shall not be incorporated into a drainage district and Petition filed herein is dismissed with prejudice.

2. That the costs to be hereafter taxed incurred by the defendants in these proceedings including a fee which is hereby awarded to M. Ignatius Lester, Attorney Ad Litem in the sum of $250.00 be, and the same are hereby adjudged against petitioners in proportion to the acreage represented by each.