Anderson v. Bell

In Anderson v. Bell, 433 So. 2d 1202 (Fla. 1983), the plaintiff, Anderson, purchased a tract of land traversed by a small, non- navigable creek. He later excavated the low-lying areas of the property and constructed an earthen dam. This damming resulted in the creation of a "substantial" lake that partially flooded several adjoining parcels. Two of the neighboring property owners whose land had been flooded, Lewis and Watson, sued Anderson for the damage caused to their property. A settlement agreement was reached whereby Lewis and Watson conveyed to Anderson a flowage easement that allowed Anderson the right and privilege to flood their land. The easement, however, expressly reserved to Lewis and Watson the title and beneficial use of their land. Lewis and Watson later sold their property to Bell. Anderson brought action to enjoin Bell from fishing and boating upon the surface waters above the bottom land owned by Anderson. Id. at 1202-1203. The Florida Supreme Court found Bell could be excluded from the surface waters above Anderson's property, holding: "the owner of property that lies adjacent to or beneath a man-made, non-navigable water body is not entitled to the beneficial use of the surface waters of the entire water body by sole virtue of the fact that he/she owns contiguous lands. . . . this is the established rule in other jurisdictions as well as the common law." Id. at 1204. The Anderson court opined that its decision to follow the common law rule was rooted in the recognition that "a lake developer's expectations in his investment" must be preserved: "Because the construction of a man-made water body often involves the expenditure of substantial sums of money and the expense is not, as a rule, divided proportionately among the various abutting owners, the individual making the expenditure is justified in expecting that superior privileges will inure to him in return for his investment." Id. at 1205. The court therefore concluded that: "We believe a contrary rule may serve to dissuade Florida homeowners and investors from making improvements that not only increase property values but also aesthetically improve adjacent lands, since they would run the risk of losing some of their property rights to other people merely because the water body touches another's property. In the event that the water happens to take a course that would result in the flowage over public lands, the entire water body would become accessible to numerous piscators, bathers and boaters, thereby destroying the property owners' investment benefits." Id. at 1205-1206.