author: HOOD, Judge. CULPEPPER, Judge

text:
    Cleve McGEE, Plaintiff-Appellant, v. Nolie Virgil Spell HARRIS and Richard Harris, Defendants-Appellees.
    No. 5447.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 24, 1976.

      Sydney Horn, Lake Charles, for plaintiff-appellant.
    Thomas W. Sanders, Lake Charles, for defendants-appellees.
    Before HOOD, CULPEPPER and PAVY, JJ.
   HOOD, Judge.

Plaintiff, Cleve McGee, seeks a declaratory judgment decreeing that a tract of land in Calcasieu Parish belongs to the separate estate of his deceased father, Joe McGee, and that defendants have no interest in that property. The defendants are Mrs. Nolie Virgil Spell Harris, former wife of the decedent, and her present husband, Richard Harris. Plaintiff later filed a motion for a summary judgment granting him the same relief which he sought in his original petition.

Defendant, Richard Harris, filed an exception of no cause of action which was sustained by the trial court, and judgment was rendered dismissing the suit as to that defendant.

The remaining defendant, Mrs. Harris, filed (1) an answer denying that the property belongs to the separate estate of the decedent, but alleging instead that it constitutes a part of the community which existed between her and McGee; (2) a re-conventional demand, praying that she be recognized as the owner of a one-half interest in that property; and (3) a motion for a summary judgment granting her the relief which she sought in her answer and reconventional demand.

A hearing was held on the motions for summary judgment filed by plaintiff and by defendant, Mrs. Harris. Thereafter, the trial court rendered a summary judgment in favor of defendant, rejecting the demands of plaintiff, Cleve McGee, and recognizing Mrs. Harris as the owner of an undivided one-half interest in the subject property. Plaintiff has appealed from that judgment.

The principal issues presented are whether defendant is estopped from claiming an interest in the subject property, and whether the trial court erred in rendering a summary judgment under the circumstances presented here.

The evidence shows that the decedent, Joe McGee, and defendant, Mrs. Harris, were married on October 4, 1946. A suit seeking a divorce between them was instituted on December 31, 1957, and a judgment decreeing a final divorce was rendered in that suit on October 30, 1958.

By act of sale dated October 10, 1952, which was during the existence of the community of acquets and gains between McGee and Mrs. Harris, Jack C. Fries sold and conveyed to plaintiff’s father, Joe McGee, a lot of land which is identified briefly here as Lot Nine (9) of the Prienterre Subdivision, in Calcasieu Parish. The deed was executed in the form of an authentic act, and it was signed by the vendor, Jack C. Fries, and by defendant, Mrs. Nolie McGee (now Mrs. Nolie Harris). The deed recites that the property was conveyed to

“JOE MCGEE, purchasing with his own separate and paraphernal funds under his own separate management and control, . . . .”

That act of sale also contains the following significant stipulation:

“And now into these presents intervenes Mrs. Nola McGee, born Spell, wife of Joe McGee, who appears herein specifically to acknowledge the fact that the funds used by her husband, Joe McGee, to purchase the property hereinabove described, is his own separate and para-phernal funds under his own separate management and control derived from the proceeds of a sale of a portion of the separate property of her said husband and that no part of the funds used for the purchase of the property hereinabove described belongs to the community existing between her and her said husband and that accordingly she does hereby disclaim any community interest which she may now have or later acquire in the above described property.”

On August 23, 1957, Joe McGee sold to his son, Cleve McGee, the east 50 feet of the lot which he previously had acquired from Fries. That sale was completed while the community between Joe McGee and Mrs. Harris was still in existence, and the property which was conveyed to plaintiff in 1957 thus is not involved in this suit.

The tract of land which is at issue here is situated in Calcasieu Parish, Louisiana, and is described as follows:

“Lot Nine (9) of Prienterre, a subdivision of the Southeast Quarter of Northeast Quarter (SE14 of NE14) of Section Twenty-Two (22) Township Ten (10) South, Range Nine (9) West, as per plat recorded, together with all improvements thereon situated, LESS AND EXCEPT the East Fifty (50) feet of Lot Nine (9) conveyed by the said Joe McGee to Cleve McGee, by Act dated August 23, 1957, filed for record in the public records of Cal-casieu Parish, Louisiana, on August 24, 1957, bearing original file no. 697674.”

Both parties concede that Joe McGee is now deceased, although the record does not show the exact date of his death. It is apparent that he died some time after he and Mrs. Harris were divorced, and before this suit was filed. He left plaintiff and some other children as his heirs.

This suit was instituted by Cleve McGee on March 26, 1975. He alleges that he “inherited a portion of this property and purchased the remaining interest from his brothers and sisters,” and that Mrs. Harris is “estopped from denying the separateness of this property.” He contends that defendant is legally estopped from claiming a community interest in the property because “she signed the deed acknowledging the fact that the funds used by her husband Joe McGee to purchase the property were his separate funds derived from the sale of his separate property, and that she had no part of the ownership of this property.”

The trial judge held that the property does not belong to the separate estate of the decedent, but that instead it constitutes a part of the community which existed between him and Mrs. Harris. He found that the deed from Fries to McGee, dated October 10, 1952, did not contain the “double barrelled recitation (1) that the property acquired is for the benefit of his separate estate and (2) the funds used to purchase are his separate funds,” and he concluded that in the absence of that double declaration “the property is presumed to be community property, and this presumption is conclusive and no evidence would be admissible to prove that the property was separate property of the husband.” The trial judge also held, in an addendum to his reasons for judgment, that the acknowledgment made by Mrs. Nolie McGee (now Mrs. Harris), and contained in the above act of sale, “is not sufficient to rebut the presumption of community.” In reaching this last conclusion he relies on LSA-C.C. art. 2446, and Succession of Tullier, 53 So.2d 455 (La.App. 1 Cir. 1951).

Property purchased in the name of either spouse during the existence of the community of acquets and gains which exists between them is presumed to be community property. LSA-C.C. arts. 2334 and 2402. This presumption of community exists even though the deed to real property contains a recital that the property is being bought with separate funds. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956).

Our jurisprudence has established the rule that in order to preserve the title to immovable property in the separate estate of the husband, it is necessary to recite two things in the deed: First, that the price is paid with the separate funds of the husband; and second, that it is the husband’s intention to acquire the property for the benefit of his separate estate, or words to that effect. Hollier v. Fontenot, 216 So.2d 842 (La.App. 3 Cir. 1968), and cases cited therein; Owens v. Owens, 259 So.2d 454 (La.App. 3 Cir. 1972); Boulet v. Fruge, 221 So.2d 602 (La.App. 3 Cir. 1969).

The deed involved in the instant suit contains a declaration made by the ven-dee-husband that the property was being purchased with his separate funds, but there is no specific declaration by the husband that the land was to be his separate property. It appears, therefore, that the deed by which Joe McGee acquired the subject property did not contain both parts of the “double declaration,” particularly if we assume that no part of the acknowledgment made by the wife and contained in the deed can be considered as having been made also by the husband.

Plaintiff argues primarily, however, that in view of the acknowledgment contained in the deed and signed by Mrs. Harris (then Mrs. McGee), the latter is now estopped from asserting that the property was purchased with community funds or that she has a community interest in that property.

The law is settled that a husband who has been a party to an act of sale of real property to his wife, in which it is declared that the price was paid with the separate funds of the wife and that the property is to be her separate property, cannot afterwards contradict that declaration, in the absence of allegations of fraud, error or duress. Under those circumstances, the husband is estopped from denying the declaration made by him that the property was purchased with the separate funds of his wife and that it is to be her separate property. This rule has been referred to at times as estoppel by deed, and it is applied in order that there may be some security of titles. LSA-C.C. art. 2236; Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Airhart v. Airhart, 153 So.2d 140 (La.App. 3 Cir. 1963); Succession of Barr, 219 So.2d 817 (La.App. 2 Cir. 1969); Moore v. Moore, 187 So.2d 145 (La.App. 2 Cir. 1966); Rousseau v. Rousseau, 209 La. 428, 24 So. 676 (1946); Pfister v. Casso, 161 La. 940, 109 So. 770 (1926); Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492 (1888); Kerwin v. Hibernia Insurance Company, 35 La.Ann. 33 (1883).

In Monk v. Monk, supra, the rule was found to be not applicable because of the facts in that case. Our Supreme Court stated, however, that:

“It has long and firmly been established under the jurisprudence of this court that a husband who has been a party to an act of purchase, in which it is declared the consideration belonged to the wife in her paraphernality and the property is to be such, either by signing the deed or as a witness thereto, cannot, thereafter, be heard to contradict it. This is known in law as estoppel by deed, and is based on the public policy of this state in order that there may be some security of titles. . ” (Citations omitted).

The Court of Appeal, Second Circuit, applied that rule in Succession of Barr, supra, stating:

“The rule, long and firmly established in the jurisprudence of this State, is that a husband who has been a party to an act of purchase of realty, by and in the name of his wife, in which it is declared that the consideration paid belonged to the wife in her para-phernality and the property is to be and remain her separate and parapher-nal property, either by signing the deed or as a witness thereto, is precluded from thereafter contradicting it under the doctrine of estoppel by deed as a matter of public policy in order that there may be some security of titles.”

We held in Airhart v. Airhart, supra, that the above rule was applicable even though the husband did not sign the wife’s deed of acquisition, but instead signed two subsequent notarial acts acknowledging that the property was purchased with the wife’s separate funds and for her separate estate.

Although the husband is estopped from denying such a declaration in the deed by which his wife acquires property, his forced heirs are relieved of that estop-pel by the provisions of LSA-C.C. art. 2239. See Succession of Broussard, 306 So.2d 399 (La.App. 3 Cir. 1975); Succession of Milton, 278 So.2d 159 (La.App. 1 Cir. 1973); Westmore v. Harz, 111 La. 305, 35 So. 578 (1902).

In each of the cited cases the property was purchased in the name of the wife, and the issue presented related to a declaration made by the husband as to the separate ownership of that property. In the instant suit, unlike any of the cited cases, the property was purchased in the name of the husband, and the wife signed an acknowledgment that the purchase price was paid from his separate funds. Plaintiff contends that the estoppel which has been applied against the husband in the above instances should be applied against the wife in this case, with the result that Mrs. Harris is estopped from denying the declaration which she signed.

We have been referred to no case in which the above rule of estoppel has been applied in favor of the husband and against the wife. In one case, Succession of Tullier, supra, an unsuccessful attempt was made to apply it against the wife, and the trial judge relied on that case in holding here that Mrs. Harris was not estopped from denying the declarations made by her that the price was paid from McGee’s separate funds and that she had no community interest in the property.

We distinguish Tullier from the instant suit. In that case the property was acquired in the joint names of the husband and the wife, and the deed contained no statements at all as to the separate nature of that property. About four months later the wife executed an authentic act in which she declared that the property had been purchased with her husband’s separate funds, that it was considered as his separate estate, and that she by that instrument transferred and conveyed to her husband all of the right, title and interest which she might have had in the property by reason of the existence of the community. The court held primarily, as we understand the opinion, that the instrument signed by the wife was absolutely null and void as being in violation of LSA-C.C. art. 2446 which prohibits interspousal contracts. It held, alternatively, assuming that the declaration of the wife was valid, that the evidence failed to show that the property was purchased with the separate funds of the husband. We consider the alternate holding of the trial court to be dictum, but whether it is or not, the opinion does not indicate that a plea of estoppel was urged in that case.

We believe that the same rule of estoppel which has been applied consistently against the husband should also be applied against the wife. That conclusion is compelled, we think, because of the public policy of this state which requires that this rule of estoppel be applied in order that there may be some security of titles. See Monk v. Monk, supra. The result in this case is that Mrs. Harris is estopped from denying the declaration she made in the deed by which Joe McGee acquired the subject property.

We have considered the wording of the declaration which was signed by Mrs. Harris, and have concluded that it is adequate to support the plea of estoppel urged by plaintiff. In that declaration she stated that the funds used to purchase the property were her husband’s separate funds, and that she disclaimed any community interest in the property. We think her disclaimer of any community interest in the property constituted an acknowledgment that the property was to be the separate property of her husband.

In Pfister v. Casso, supra, our Supreme Court held that there was nothing sacrosanct about the form of the declaration which the husband makes. There, the deed did not contain a statement that the price was paid with the separate funds of the wife, although it stated that she was “purchasing for herself in her separate and paraphernal capacity.” That deed was simply witnessed and signed by the husband. The court said:

“ . . . It suffices that he allows the property to be put in the name of the wife, instead of his own, as head of the community, and that he acknowledges that such property belongs to the separate estate of his wife. It is the fact of such acknowledgment, and not the form thereof, which concludes the husband and those claiming under him.” the adverse party makes out his title thereto; or

In view of the provisions of LSA-C.C. art. 2236 and the rule applied in the above cases, we conclude that Mrs. Harris is estopped from denying that the property involved in the instant suit was purchased with the separate funds of Joe McGee, and that the parties intended that the property was to belong to his separate estate. The trial court erred in failing to apply the above rule of estoppel.

In view of the conclusion which we have reached, it is unnecessary for us to consider the persuasive argument made by plaintiff that the requirement of the so-called “double declaration” in an acquisition by the husband, in order to preserve the property as a part of his separate estate, is contrary to the provisions of LSA-C.C. art. 2334, as amended by Act 170 of 1912. His argument is that the 1912 amendment to Article 2334 effectively eliminated the requirement of the double declaration. See 30 La.Law Rev. 223-225, and 49 Tul.Law Rev. 577-578 (and footnote 65).

There is no genuine issue as to any material fact in this case and for that reason it is appropriate that a summary judgment be rendered in favor of plaintiff granting the relief sought by him.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of plaintiff, Cleve McGee, and against defendant, Mrs. Nolie Virgil Spell Harris, decreeing that defendant, Mrs. Harris, is estopped from asserting title to the above described property under the deed dated October 10, 1952. The costs of the suit and of this appeal are assessed to defendant-appellee.

REVERSED AND REMANDED.

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge

(concurring).

The purpose of this concurring opinion is to make it clear that I can agree with the majority decision only because it is my understanding that it does not decide the ownership of the immovable property involved. The decree in the majority opinion states only that Mrs. Harris is estopped to claim any interest in the property under the particular deed whose construction is at issue, and I agree with this.

I think it is important to make this clear because the record in the present case contains no evidence whatever as to possession of the property. The law is clear that in actions for declaratory judgment, where the issue of ownership of immovable property is being decided, the favored roll enjoyed by the possessor must be fully protected, the same as in the petitory action. LSA-C.C.P. Art. 3654 expressly provides:

“When the issue of ownership of immovable property or of a real right is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right is so presented, the court shall render judgment in favor of the party:
“(1) Who would be entitled to the possession of the immovable property or real right in a possessory action, unless
“(2) Who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.”

Note also the Official Revision Comments under Article 3654 which give the sources and history of its provisions. These comments make it clear that where the issue of ownership of immovable property is presented in an action for declaratory judgment, or similar proceeding, full effect must be given to the roll of possession of the property in dispute. See Pure Oil Company v. Skinner, La., 294 So.2d 797 (S.Ct.l974), which was a concursus proceeding: Note, Declaratory Judgments Act — Use in Real Actions, 31 Tul. L.Rev. 197 (1956); Yiannopoulos, La. Civil Law Treatise, Vol. 2, Property, Section 141.

In the present case, if ownership were being decided and if the defendant, Mrs. Harris, was in possession of this immovable property for more than a year prior to the time this suit was filed, she would be entitled to judgment maintaining her possession because the plaintiff did not “make out his title.” He introduced only the deed by which his father acquired the property in 1952, and he alleges, without proof, that he inherited an interest from his father and that he purchased the remaining interests from his brothers and sisters. Thus, it is clear that the plaintiff has not sustained his burden to “make out his title” as against a defendant in possession.

Summarizing my position, it is that if the issue of ownership of this immovable property were being decided in this action for declaratory judgment, I could not concur because plaintiff has not made out his title and the record contains no evidence as to who is entitled to possession. I can concur because it is my understanding that the majority decision does not decide the issue of ownership. It decides only that under the particular deed in question, Mrs. Harris is estopped to claim any ownership interest in the property. We do not decide whether she has any other claims to ownership or possession.

For the reasons assigned, I respectfully concur.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellee, v. Robert Daigle DUPRE, Defendant-Appellant.
    No. 5473.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.

      John Saunders, Mamou, for defendant-appellant.
    Joseph R. Vidrine and L. O. Fuselier, Ville Platte, for plaintiff-appellee.
    Before HOOD, MILLER and PAVY, JJ.
   HOOD, Judge.

Oscar Sylvester, Jr., seeks to recover from his lessee, Robert Daigle Dupre, a part of a penalty which was assessed against Sylvester for overplanting a crop of rice in 1971. The penalty was imposed under the Agricultural Adjustment Act of 1938 for planting in excess of the farm marketing quota set for rice by the Secretary of the U. S. Department of Agriculture. The trial court rendered judgment in favor of plaintiff, and defendant appealed.

The issue presented is whether plaintiff is entitled to recover from defendant, on the grounds of unjust enrichment, a pro-rata part of the penalty which was paid by plaintiff.

The parties entered into' a written agricultural lease contract on November 22, 1970, under the terms of which Sylvester leased to Dupre for rice farming purposes three separate tracts of land or farms, one of which is located in St. Landry Parish, and two are in Evangeline Parish. The contract provided that Sylvester also leased to Dupre “all of Lessor’s rice acreage, being 500 acres more or less,” to be planted on one or more of the three farms, to be agreed upon between Lessor and Lessee.

The lease was for a term of six years, beginning November 22, 1970. It provided that the Lessor was to furnish Lessee with all water necessary for the growing of rice crops on said farms, and that Lessor was to pay forty-five (45%) percent of the expenses of fertilizer, insecticides, poisons, weed controls and airplane expenses. In consideration therefor, the Lessee agreed to pay the Lessor, Sylvester, a rental of forty-five (45%) percent of all rice raised by Dupre on those farms.

Pursuant to the provisions of that lease, Dupre planted approximately 500 acres of the leased property in rice in 1971. Sylvester furnished water for the crop and he paid his share of the expenses incurred in raising that crop, as provided in the lease. The 1971 rice crop was harvested and sold, and the proceeds of the sale were divided between the Lessor and the Lessee in accordance with the terms of the lease contract. Sylvester received forty-five (45%) percent of those proceeds and Dupre received fifty-five (55%) percent of them.

Dupre planted another rice crop on the leased property in the .spring of 1972. A disagreement arose between him and Sylvester during that crop season, however, and Dupre did not complete or harvest that crop. Some litigation ensued between the parties relating to the 1972 crop.

During the fall of 1972 a representative of the Agricultural Stabilization Conservation Service, an agency of the U. S. Department of Agriculture, investigated the farming operations which had been conducted on the leased property in 1971, and a determination was made that Sylvester or his tenant had overplanted the property in rice that year by 77.3 acres. Sylvester was listed as the “operator” of the farm on the records of the Evangeline Parish office for the ASCS program, and he was assessed a penalty of $11,945.34 for that overplanting. He promptly paid the full amount of that penalty.

Sylvester appealed to the “County Committee” to review the above assessment, and that committee determined (1) that the property had been overplanted 32.7 acres instead of 77.3 acres, and (2) that the penalty imposed against Sylvester should be reduced from $11,945.34 to the sum of $5,053.-22, necessitating a refund of $6,892.12. That determination was accepted by the U. S. Department of Agriculture, and the sum of $6,892.12 was refunded to Sylvester. The net amount paid by Sylvester as a penalty for overplanting the 1971 crop thus was $5,053.22.

Sylvester made demand on Dupre for reimbursement of fifty-five percent of the net amount which he paid as the penalty for overplanting rice in 1971, contending that Dupre owed that amount as his pro-rata share of the penalty. Dupre refused to reimburse plaintiff, and this suit was filed. After trial, judgment was rendered by the trial court in favor of Sylvester condemning Dupre to pay him the sum of $2,779.27, that being fifty-five percent of the penalty paid by plaintiff. Dupre appealed.

The trial judge found, as we interpret his reasons for judgment, that the overplanting of rice on the leased property in 1971 was unintentional. He concluded that since Du-pre had received fifty-five percent of the proceeds of the sale of the rice which was raised on the excess acreage, he was obliged under the maxim of unjust enrichment to reimburse plaintiff that percent of the penalty which was assessed for the overplant-ing.

Articles 1964 and 1965 of the Louisiana Civil Code provide:

“Art. 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”
“Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.” (Emphasis added).

Our law recognizes the general theory of a quasi contractual obligation, or an actio de in rem verso, founded on unjust enrichment. There are five prerequisites to a successful suit by actio de in rem verso: (1) There must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and resulting impoverishment; (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment; and finally (5) the action will only be allowed when there is no other remedy at law, i. e., the action is subsidiary or corrective in nature. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Brignac v. Boisdore, 288 So.2d 31 (La.1973); Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974); Coleman v. Bossier City, 305 So.2d 444 (La.1974).

All of these prerequisites are present in the instant suit. Dupre planted, cultivated and harvested the rice which was raised on the excess acreage, and he received fifty-five percent of the proceeds of the sale of that rice, although he has paid no part of the penalty which was assessed under the ASCS program because of the fact that rice was planted on that acreage. The entire penalty was paid by Sylvester, who received only forty-five percent of the proceeds of the sale of the crop, and who received no consideration or benefit from the payment of Dupre’s pro-rata share of that assessment. Dupre thus was enriched, Sylvester was impoverished, there was a connection between the enrichment and the resulting impoverishment, and there was absence of cause for the enrichment and impoverishment. There appears to be no remedy at law, other than an action based on unjust enrichment.

The contract was silent as to how the payment of penalties assessed under the ASCS program were to be apportioned, if any such penalties became due, and the courts must apply the equitable principle that no one ought to enrich himself at the expense of another. LSA-C.C. art. 196S.

Applying the above rules, it appears that there was no error in the judgment of the trial court which allowed plaintiff to recover from defendant a pro-rata part of the penalty which was paid by plaintiff for the overplanting.

Defendant contends, however, that Sylvester was the “operator” of the farm in 1971, that as such it was his duty to see that the proper acreage was planted, and that he committed an unlawful act by planting rice that year, and by failing to declare to the U. S. Department of Agriculture a tract of land on which a part of that crop was planted. He takes the position that Sylvester was solely responsible for the overplanting of rice in 1971, that the penalty which he was required to pay was a “fine Mr. Sylvester had to pay . . . for violation of a criminal law, and that under the Clean Hands Doctrine he should not be entitled to have someone else share in his penalty for violating the law.”

Dupre relies on LSA-C.C. arts. 1891 and 1892, which provide:

“Art. 1891. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it.”
“Art. 1892. That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void.”

He argues that the plaintiff is not entitled to recover on the basis of an implied contract for reimbursement, because such a contract in this instance would be void as being morally impossible, forbidden by law and contrary to morals.

The law is settled that an action for the collection of penalties under the Agricultural Adjustment Act of 1938 is strictly civil in nature. The penalties imposed under that act for planting crops in excess of the acreage allotment are not fines or forfeitures imposed for the commission of an unlawful act, but instead are civil penalties or assessments. United States v. Appling, 239 F.Supp. 18S (D.C.1965); Miller v. United States, 242 F.2d 392 (6 Cir. 1957), cert. denied, 355 U.S. 833, 78 S.Ct. 48, 2 L.Ed.2d 44; United States v. Stangland, 137 F.Supp. 539 (N.D.Ind.1956), affirmed, 7 Cir., 242 F.2d 843.

In Miller v. United States, supra, the court said:

“The Agricultural Act provides not for ‘forfeiture’ but for a money judgment for the penalties established for noncompliance. Under the Act a producer’s overproduction of wheat contrary to the allotments made by the Secretary of Agriculture and by the County Committee is not invested with a criminal character. It is not a crime to produce in excess of the marketing quota. In fact, a producer may grow whatever quantity of wheat he wishes, provided the pays the civil penalty. Neither is the marketing of wheat in excess of the quota prohibited. The purpose of requiring the penalties was not to raise revenue for the government but to discourage the planting and marketing of more than the quotas established. These circumstances demonstrate that the action for penalties under the Agricultural Adjustment Act is neither criminal nor quasi-criminal.” (citations omitted).

The penalty which Sylvester was required to pay in the instant suit was assessed under the Agricultural Adjustment Act of 1938 (7 U.S.C.A. 1281, et seq.). That Act establishes marketing quotas for tobacco (7 U.S.C.A. 1311-1316), corn (7 U.S.C.A. 1321-1330), wheat (7 U.S.C.A. 1331-1340), cotton (7 U.S.C.A. 1341-1350a), rice (7 U.S.C.A. 1351-1356), and peanuts (7 U.S. C.A. 1357-1359).

The penalty imposed in Miller, supra, was for the overproduction of wheat, but we think the rule applied in that case is applicable to the overproduction of any of the agricultural products covered by that act, including rice.

Our conclusion is that the penalty imposed on Sylvester by the U. S. Department of Agriculture for the overproduction of his rice marketing quota in 1971, was a civil penalty, assessed under the Agricultural Adjustment Act of 1938. We know of no law which forbids him from recovering a pro-rata part of that penalty from his tenant, and we find that it is not contrary to morals to permit him to do so.

Defendant contends, finally, that plaintiff is barred from recovery by the “Clean Hands Doctrine.” His argument is that Sylvester knowingly and willfully over-planted his 1971 rice crop, that he represented to defendant that the acreage planted was within his marketing quota, and that he thus misled defendant into believing that the rice crop planted in 1971 complied with the acreage allotment made to Sylvester that year.

We have concluded, as the trial judge apparently did, that the overplanting which occurred in 1971 was unintentional. If any fault, negligence, misrepresentation or bad faith is to be attributed to Sylvester, however, then it seems to us that Dupre also must be charged with some responsibility for overplanting the leased premises.

The evidence shows that Dupre was familiar with the leased property and with the crops which had been planted on that land before he entered into the above lease contract. He assisted Sylvester in farming the same property in 1969 and in 1970, and he alone planted, cultivated, harvested and sold all of the rice which was raised on that property in 1971. He knew the approximate acreage allotment to which Sylvester was entitled in 1971, and he was able to obtain the exact allotment and to measure the land planted if he had desired to do so. Defendant argues, however, that he did not check plaintiff’s acreage allotment in the ASCS office, that he planted substantially the same number of acres to rice in 1971 as Sylvester had planted the previous year, that Sylvester had represented to him that the number of acres planted in 1970 did not exceed his marketing quota for that year, although Sylvester knew that he had exceeded his quota that year, and that plaintiff thus misled defendant in believing that the amount of rice he planted in 1971 was within his allotment.

Dupre was an intelligent, experienced farmer. He was 31 years of age at the time of the trial. He had received a B. S. Degree from Louisiana State University in New Orleans, majoring in chemistry and minoring in physics. He was related to Sylvester by marriage, and he worked for plaintiff assisting in the production of rice from the leased premises in 1969 and in 1970. He obviously was familiar with the ASCS program. He was as able as was Sylvester to measure the acreage which was planted in 1971 and to determine the acreage allotment which the latter had at the time the crop was produced. Dupre, in fact, caused the property to be measured by ASCS officials in the fall of 1972 so that he could obtain evidence for use in the litigation which was then pending relating to the 1972 crop, and we assume that as a result of his efforts in that respect a determination was made that the property had been overplanted in rice in 1971. If Dupre did not know that the leased property was overplanted to rice in 1971, then we think it is probable that Sylvester also was not aware of the overplanting.

We have reviewed all of the evidence, and we conclude, as the trial judge apparently did, that the overplant-ing which occurred in 1971 was unintentional, that plaintiff did not intentionally mislead defendant into believing that the 1971 crop was within Sylvester’s acreage allotment that year, and that plaintiff thus is not barred from, recovery by the so-called “Clean Hands Doctrine."

Our conclusion is that there is no error in the judgment of the trial court which decrees that Sylvester is entitled to be reimbursed a pro-rata part of the penalty which he was assessed for overplanting the 1971 rice crop.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

PAVY, J., dissents.


author: BERTRAND, Judge.

text:
    Louis CULPEPPER, Plaintiff-Appellant, v. NATCHITOCHES PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 5480.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      Holloway, Baker, Culpepper & Brunson by Jim Beal, Jonesboro, for plaintiff-appellant.
    Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before MILLER, WATSON and BERTRAND, JJ.
   BERTRAND, Judge.

Louis L. Culpepper instituted this action against the Natchitoches Parish School Board seeking damages and injunctive relief. He contends that the School Board allowed sewage to drain across his property causing physical damage to the property. Coupled with his demand for damages is a prayer for a permanent injunction to prevent the School Board from draining the sewage from its property onto his. Cul-pepper appeals from the judgment of the trial court dismissing his demands. We affirm.

The Natchitoches Parish School Board maintains and administers a school on property adjacent to Culpepper’s property. Culpepper contends that the underground septic tank and accompanying sewerage system used to serve the school is defective and therefore allows raw sewage to flow across his property. The sewerage system is of the type which filters out all impurities so that the eventual discharge is a clear effluent. The effluent drains into a drainage ditch which traverses the properties of Culpepper and the School Board and eventually drains into Bayou Natchez. The drainage ditch also drains surface water from above the School Board property into the Bayou.

After Culpepper filed this action and prior to trial, the School Board constructed a special field line which drains the effluent directly into the Bayou. Cul-pepper’s demand for a permanent injunction is therefore moot.

A plaintiff must establish his case by a clear preponderance of the evidence. Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (La.1963); Campbell v. Diamond M. Drilling Company, Inc., 274 So.2d 842 (3rd Cir.La. App.1973). He must also prove with legal certainty every item of damages claimed. Foggin v. General Guaranty Insurance Co., 207 So.2d 176 (2nd Cir.La.App. 1967); Fox v. American Steel Buildng Company, Inc., 299 So.2d 364 (3rd Cir.La.App. 1974).

The trial judge found that the evidence failed to establish, by a preponderance of the evidence, that Culpepper had sustained damages. A careful review of the testimony supports the trial judge’s conclusion. Culpepper’s witnesses included himself, his two (2) sons, and Loomis Me-toyer, a tenant of Culpepper’s. The two sons testified that they noticed discolored water on Culpepper’s property which smelled like raw sewage.

Metoyer testified that he did notice an odor at times but never paid much attention to it. He thought it was probably rotten water.

The evidence shows that the sewerage system was constructed and maintained in conformity with all laws and regulations regarding sanitation and was approved by the State Health Department. Monthly sanitary inspections were conducted at the school and twice a year there was a general inspection of the sewerage system. Mr. Raymond Slaughter, the chief sanitarian for the Natchitoches Parish Health Department, and Mr. Stephen Dowden, an employee of the Louisiana State Health Department, testified that, in addition to the regular inspections, they made special inspections of the system at the request of the School Board and found the system to be functioning properly. They found the effluent which flowed through the drainage ditch to be colorless and odorless.

Inspections were also conducted by Mr. Henry Barrow, the principal of the school, and Mr. Johnny Manning, an investigator for the District Attorney’s office. They testified that they, too, found that the sewerage system was functioning properly, the effluent was clear, and that there was no odor.

Mrs. Alberta Bradley, a neighbor of Cul-pepper’s for eight (8) years, who lives within twenty (20) or thirty (30) feet from the drainage ditch testified that she never noticed any odor from the effluent flowing in the ditch.

Mr. Leslie Graham, an employee of the School Board, and Mr. W. J. Bullock, a former superintendent of schools, testified that they received no complaints from Cul-pepper about the effluent until 1974. Cul-pepper contends that he had been complaining about the effluent since 1970.

Culpepper contends that the operation of the sewerage system by the School Board caused physical damage to his property, depreciation in its value, loss of use of property, and constituted a constructive trespass. He also asks for attorney’s fees. The only evidence presented by Culpepper to show damage was his testimony that he intended to subdivide his property into residential lots and that his plans were delayed because of the drainage of the effluent. Culpepper’s own son testified that he was unaware of his father’s intention to subdivide the property. Culpepper offered no evidence whatsoever to show physical damage, loss of use, or depreciation. The trial court’s conclusion that Culpepper failed entirely to prove by a preponderance of the evidence that he sustained damage is supported by the record.

For the above and foregoing reasons, the judgment of the district court is affirmed. Cost at trial and on appeal are assessed against the plaintiff.

AFFIRMED.


author: WATSON, Judge.

text:
    Tom ELKINS, Plaintiff-Appellee, v. FIREMAN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Defendant-Appellant.
    No. 5451.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, Jack O. Brittain, Natchitoches, John P. Godfrey, Many, for defendant-appellant.
    Gold, Hall, Hammill & Little by John F. Simon, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for defendant-appellee.
    G. F. Thomas, Jr., Nachitoches, William J. Doran, Jr., Norman J. Sisson, Robert J. Jones, Sharon P. Frazier, David K. Balfour, Baton Rouge, for plaintiff-appellee.
    Before MILLER, WATSON and BERTRAND, JJ.
   WATSON, Judge.

Plaintiff, Tom Elkins, filed this suit to recover for personal injuries and property damage resulting from an automobile accident on January 18, 1972. Named defendants were Reliance Insurance Company and Fireman’s Insurance Company of Newark, New Jersey, both of which were alleged to have uninsured motorist coverage on the Buick automobile operated by Elkins. The automobile was owned by El-kins’ employer, Daray Motor Company, which provided it for Elkins’ regular use. The suit was subsequently compromised and dismissed as to Reliance. Fireman’s filed a third party demand against Ronnie E. Brummerloh, the owner and operator of the other automobile involved in the accident; and against the Louisiana Department of Highways, Louisiana Paving Company, Inc., and the City of Natchitoches, Louisiana, all allegedly negligent as to Louisiana Highway 6. Louisiana Paving Company, Inc. filed an exception of prescription to the third party demand on the ground that the accident occurred January 18, 1972, and the petition of Elkins was not filed until March 21, 1975. This exception was sustained by the trial court and Fireman’s has appealed.

Other pleadings in the record are not pertinent to this appeal.

Fireman’s contends that the trial court erred in maintaining the exception of prescription because prescription was interrupted by a companion suit filed January 10, 1973. The record in this appeal contains no evidence to support this contention; there is nothing to establish the filing of another suit. Accordingly, this contention cannot be considered.

On the record presented, the third party demand of Fireman’s Insurance Company of Newark, New Jersey, against Louisiana Paving Company, Inc., based on negligence, has prescribed and was properly dismissed on the peremptory exception of prescription.

For the foregoing reasons, the judgment of the trial court sustaining the exception of prescription filed by Louisiana Paving Company, Inc. is affirmed. All costs of this appeal are assessed to defendant-third party plaintiff-appellant, Fireman’s Insurance Company of Newark, New Jersey.

AFFIRMED.


author: ENGLAND, Justice. BOYD, Justice

text:
    William J. ALSDORF et al., Appellants, v. BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 47566.
    Supreme Court of Florida.
    May 5, 1976.
    Rehearing Denied July 7, 1976.
    C. Lavon Ward, Fort Lauderdale, for appellants.
    Betty Lynn Lee, Gen. Counsel, and John Ruff, Asst. Gen. Counsel, Fort Lauder-dale, for appellee.
   ENGLAND, Justice.

This matter was brought to us by direct appeal from a final judgment rendered by the Broward County Circuit Court, construing Article VIII, Section 1 (h) of the 1968 Florida Constitution as being inherently too vague to be self-executing. We have jurisdiction to review that judgment under Article V, Section 3(b)(1) of the Florida Constitution.

This lawsuit began as a class action by twenty-four mayors of Florida municipalities, in their governmental capacities and as citizen-taxpayers, seeking declaratory and other forms of relief against Broward County in connection with the County’s 1973-74 budget. The mayors’ lawsuit challenges Broward County’s expenditure of various sums raised by property tax levies from residents within municipal boundaries, in the light of Article VIII, Section 1(h) of the Florida Constitution, which provides :

“(h) Taxes; limitation. Property situate within municipalities shall not be subject to taxation for services rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.”

Following a four day non-jury trial, the trial court entered final judgment against the mayors and dismissed their lawsuit, finding '

“. . . that Article VIII, Sec. 1(h) of the Florida Constitution (1968), is too vague by itself to be workable. There are no standards, no guidelines by which to aide the municipalities and counties in their attempt to work within the Constitutional provision. This Court feels that it is the legislature’s duty to supply the necessary standards so as to make the provision workable.”

The mayors attack that judgment here.

We previously construed the language of this constitutional provision in City of St. Petersburg v. Briley, Wild & Assocs., Inc., 239 So.2d 817 (Fla.1970). In that case we held that the term “exclusively” could not be read literally, and that county taxation of municipal properties is barred only when county services bring to municipal property owners no “real or substantial benefit”. We there held, on the facts of that case, that tax-supported expenditures for a county sewage treatment plant benefited the residents of intra-county municipalities by preserving their health, even though no lines, mains, pumping stations or other physical facilities were constructed within city boundaries.

Other Florida appellate decisions have upheld the use of city-derived property tax revenues for a county fire department, for county sewer facilities, and for county roads, canals and related improvements.

Unlike previous litigants who have challenged individual county expenditures, the mayors in this lawsuit challenge an array of county expenditures, asserting that each provides no “real and substantial benefit” to city dwellers within the county. The trial court analyzed these assertions and found from the evidence adduced at trial that, while “some of the items listed in the plaintiffs’ lawsuit clearly benefit all citizens of the County . . . numerous other items benefit only the residents of the unincorporated areas and, therefore, must necessarily come within the purview of this lawsuit.” Nonetheless, the court dismissed the mayors’ lawsuit on the ground that legislative guidelines were needed to make the constitutional provision work. We disagree.

Both appellant and appellee support their positions here with our decision in Gray v. Bryant, 125 So.2d 846 (Fla.1960). Appellant cites several portions of that decision for support and points out that the constitutional provision at issue there was held to require no legislative implementation for its effectiveness. Appellee finds support for its position in the Court’s language on page 851, to the effect that:

“The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.”

From this appellee argues that the complexity of financing, budgeting and conducting a variety of necessary governmental activities in a county which contains multiple municipalities, coupled with the ever present factual uncertainty of what is and what is not of “real and substantial benefit” to particular municipal residents, requires an affirmation of the trial court’s conclusion.

We recognize the logic of appellee’s argument. We concede, in fact, that the practical consequences of holding for the mayors may pose such horrendous fiscal problems for the administration of 67 counties that their governmental operations may be virtually incapacitated by uncertainty and lawsuits. If there were any practical way to avoid that result consistent with the Constitution, we would readily adopt it. But neither party here has offered such a solution, and we can conceive of none. We simply cannot abdicate our responsibility to follow the will of the people as expressed in the Constitution, on the grounds of administrative complexity.

The mandate against city taxation for exclusive county activities is absolute and unequivocal. The people appear to have directed this consequence despite the fact that extensive judicial labor is required to separate the permissible from the impermissible. Indeed, we fail to see any way in which legislative intervention would lessen that labor.

Our view of the self-executing nature of this constitutional position has three bases.

(1) The language of the Constitution is reasonably straightforward and unambiguous. The intent of this tax limitation provision is both obvious and understandable. Practical considerations aside, there is no reason that the words cannot be applied to mean precisely what they say (with the gloss previously given the term “exclusively” in Briley).

(2) The format of the particular provision is not unique to our Constitution. The identical mandatory negative “shall not” or its equivalent appears in numerous other provisions as a direct check on governmental and nongovernmental acts, some of which also bar ad valorem taxation on various subjects. We are not willing to lessen the negative directive in this provision in light of the implications which that action could have in other areas.

(3) The trial court found as a fact that several of the county expenditures enumerated in the mayors’ complaint are of no real or substantial benefit to municipal residents. Neither party has challenged the trial court’s findings as being without factual support in the record. This appears to prove appellants’ point that the Constitution can operate without legislative clarification.

We conclude, therefore, that Article VIII, Section 1(h) of the Florida Constitution is self-executing, and that with or without legislative interpretation the courts will be required to draw the lines between acceptable and prohibited municipal taxation. We must, therefore, reverse the trial court’s decision and remand this proceeding for further action by the trial court in light of our opinion.

We recognize, however, that the fiscal effect of our decision may significantly affect Broward County and that neither it nor the Legislature has provided revenue for this eventuality. Under these circumstances, we direct the trial court to exercise its inherent equitable powers to fashion a suitable remedy for the resolution of this controversy.

“In a changing world marked by the ebb and flow of social and economic shifts, new conditions constantly arise which make it necessary, that no right be without a remedy, to extend the old and tried remedies. It is the function of courts to do this. It may be done by working old fields, but, when it becomes necessary, they should not hesitate to ‘break new ground’ to do so.”

The parties may be able to agree among themselves on an arrangement which recognizes the rights of municipal taxpayers and the obligations incurred by county government. If such a settlement is now possible, the courts should not intervene. Otherwise, the plaintiffs are entitled to remedial orders which take into account the equities on both sides.

The decision of the circuit court is reversed and this case is remanded for further action consistent with this opinion.

OVERTON, C. J., and ADKINS, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion.

ROBERTS, J., dissents and concurs with BOYD, J.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion.

This Court should be fully aware that Broward is one of Florida’s largest and perhaps the fastest growing counties in the Nation. It has many municipalities and unincorporated areas which appear to be the same with no major differences in public services offered in such areas. To require the County to separate tax dollars expended based upon municipal boundaries imposes an unrealistic and impossible task.

As we stated in City of St. Petersburg v. Briley, Wild and Associates, 239 So.2d 817 (Fla.1970), and Burke v. Charlotte Co., 286 So.2d 199 (Fla.1973), there is no requirement that funds expended by counties outside of municipalities be “direct and primary,” but “real and substantial” to the benefit of municipal residents. It is hard to imagine any expenditure which could be made in populous Brow-ard County which could benefit only persons in the unincorporated areas without real and substantial benefits to at least some of those residents of incorporated areas.

Such a division stated in the constitutional provision construed by the majority opinion could only be accomplished in those rural areas of the state having small municipalities wherein the services furnished in the towns or cities can be clearly identified as separate in nature from rural benefits provided for agricultural and similar purposes.

I would adopt the trial court’s judgment except that I would hold that under Gray v. Bryant, 125 So.2d 846 (Fla.1960), the constitutional provision is self-executing in rural or semi-rural areas in which municipal limits clearly distinguish between city and rural areas. The separation of tax dollars as stated in the Constitution can not be accomplished in the vast metropolitan complex of Broward County.

ROBERTS, J., concurs.

      . Twenty-two of the original plaintiffs were dismissed from the lawsuit before this appeal was taken.

      . Appellants also argue that the trial court should be compelled to pass on appellee’s city-county allocation of budgeted funds under Section 129.01(2) (b), Fla.Stat. (1975), and to order a refund of illegally assessed taxes. In our view of the case, it is not necessary to reach either of these issues.

      . The Court also suggested, although it was not germane to the controversy, that county parks, libraries, and perhaps even fire-fighting equipment, might be services for which the county could not tax municipal properties.

      . Dressel v. Dade County, 219 So.2d 716 (3d DCA Fla.1969) (decided without reference to Article VIII, Section 1(h) of the Constitution).

      . City of Waldo v. Alachua County, 249 So.2d 419 (Fla.1971), (decided without reference to Article VIII, Section 1(h) of the Constitution).

      . Burke v. Charlotte County, 286 So.2d 199 (Fla.1973).

      . Plaintiffs’ complaint has challenged 34 separate county activities, constituting over one-third of the county’s budgeted activities. These include funding of the county commission, the county attorney, the county auditor, the county comptroller, and the county’s data processing, personnel, purchasing, planning, development, engineering, mosquito control and water management departments. After trial, the primary county activity at issue was the county sheriff’s road patrol.

      . It lias been suggested that we recede from Briley by adopting a literal view of “exclusively”, and by so doing leave the area for operation of this provision so narrow as to be inconsequential and unenforceable. Tempting as this appears, this solution merely offers an absurd result in place of an impractical one. 239 So.2d at 822.

      . If the Legislature attempted to enumerate county services within or without the constitutional ban (it doesn’t matter which), we would still be obliged to entertain and ultimately rule on challenges to individual service items.

      . A fair portrayal of the history of the concerns which led to the adoption of this provision, and the related governmental attempts to deal with those concerns which have evolved after it became effective, is set forth in January 1976 issue of the Florida Municipal Record, an official publication of the Florida League of Cities.

      . See, for example, Article I, Sections 3 (“There shall he no law respecting the establishment of religion . . . .”), 4 (“No law shall be passed to restrain or abridge the liberty of speech or of the press.”), 6 (“The right of employees ... to bargain collectively shall not be denied or abridged.”) and 10 (“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”) ; Article VII, Sections 1(b) (“Motor vehicles, boats [etc] shall not be subject to ad valorem taxes.”) and 9 (b) (“Ad valorem taxes . shall not be levied in excess of the following millages . . . .”) ; Article VIII, Section 3 (“Consolidation shall not extend the territorial scope of taxation for the payment of pre-existing debt . . . .”) ; Article X, Sections 1 (“The legislature shall not take action on any proposed amendment to the constitution of the United States unless a majority of the members thereof have been elected after the proposed amendment has been submitted for ratification.”), 4(c) (“The homestead shall not be subject to devise if the owner is survived by spouse or minor child. . . . ”), and 9 (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”). Cf., Dade County Classroom Teachers Ass’n, Inc. v. Florida Legislature, 269 So.2d 684 (Fla.1972).

      . The trial court identified four categories of services and facilities in Broward County, listing some items believed to be within each category. One category involves items from which all cities receive benefits all of the time, such as the county commission. Another involves items from which all cities receive benefits some of the time, such as the sheriff’s office and the personnel office. Items in these categories were found to be properly taxable to city residents. As to the necessary extent of real and substantial benefit, see Dressel v. Dade County, 219 So.2d 716 (3d DOA Fla.1969). Another category involves items from whieli some but not all municipalities benefit, such as emergency medical services available only in West Broward County and the county library. Items in this category would require an identification and allocation of revenues and expenditures. The last category involves items from which no city benefits, such as the building and zoning department.

      . Appellee suggests that the likely result of holding as we do will be (1) consolidation of cities and counties, (2) abolition of cities, (3) proliferation of special tax districts, or (4) expanded user fees. That assertion may be correct. See Gallant v. Stephens, Case No. 75-8681, Sixth Jud.Cir. Court (12/19/75), holding that a county commission may constitute all unincorporated areas as a special tax unit for ad valorem taxes without a referendum.

      . State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, 641 (1932).


author: MILLS, Judge. BY THE COURT:

text:
    PANAMA CITY, Florida, Petitioner, v. The FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, and Northwest Florida Police Benevolent Association, Inc., Respondents.
    No. BB-186.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Rehearing Denied June 29, 1976.
    John-Edward Alley, Alley & Alley, Robert A. Hanudel, Tampa, Rowlett W. Bryant, Sale, Bryant, Daniel & Thompson, Panama City, for petitioner.
    Curtis L. Mack, Jack L. McLean, Jr., Gerad A. Williams, and Ben R. Patterson, Tallahassee, for respondents.
   MILLS, Judge.

The City filed a petition to review the Commission’s orders defining a bargaining unit and directing an election. The Commission moved to quash or dismiss the petition, and the City moved to stay the election. By our order of 5 March 1976, we denied the motion to quash or dismiss, but granted the motion to stay.

Thereafter, we permitted the Association to join in this review as a respondent, and it moved to dissolve the stay. At the time we permitted the joinder of the Association as a respondent, we agreed to reconsider the Commission’s motion to quash or dismiss the City’s petition for review.

Having considered the record and briefs, and heard oral argument, we set aside our order of 5 March 1976, and grant the Commission’s motion to quash or dismiss, and grant the Association’s motion to dissolve the stay.

The determination of an appropriate bargaining unit and direction of an election are not final orders. Therefore, under Section 120.68(1), Florida Statutes, the orders are reviewable only if this court finds that the review of the final agency decision would not provide an adequate remedy. We do not so find.

The filing of the petition does not itself stay enforcement of the agency action. A stay may be granted by the agency or by the court upon appropriate terms. Section 120.68(3), Florida Statutes. Therefore, pursuant to Rule 5.5, Florida Appellate Rules, the movant should apply to the agency for supersedeas. Ziers v. Purdy, 324 So.2d 132 (Fla.App.3d, 1975).

It is, therefore, ordered and adjudged that the petition for review is dismissed, and the stay of the election is dissolved.

McCORD, Acting C. J., and SMITH, J., concur.

ON PETITION FOR REHEARING

BY THE COURT:

Panama City urges we further consider the consequences of deciding that a PERC order defining a bargaining unit and calling an election is not final agency action for purposes of judicial review under § 120.68(1), F.S.1975. If a majority of voting employees in the unit select a bargaining representative, the City apprehends, PERC’s automatic certification of that employee organization will immediately require the City to bargain collectively without opportunity for judicial review of antecedent PERC orders. Secs. 447.307(3) (b), .309(1), F.S.1975. The City’s apprehensions are fed by PERC’s argument that its interlocutory orders, including the unit definition, cannot be judicially reviewed unless and until the employer refuses to bargain collectively with the certified bargaining representative, thus subjecting itself to unfair labor practice sanctions. Sec. 447.501(c), F.S.1975.

PERC’s argument and the City’s fears are unfounded. PERC’s order certifying an employee organization as exclusive collective bargaining representative of employees in-a designated unit is “final” for purposes of judicial review of that order and all prior interlocutory orders. Should PERC then refuse to stay bargaining pending our review, we have authority to grant that relief in order to make our jurisdiction effective. Art. V, § 4(b)(3), Fla.Const. It is appropriate that judicial review thus be withheld until the affected employees have had their opportunity to accept or reject, by election, the proffered representation.

Because the questions have not been presented and argued in this case, we postpone consideration of whether a unit definition by PERC will survive an election in which no bargaining representative is chosen and, if so, how judicial review of the original unit definition may be effective more than 12 months later, following another election and the certification of a successful employee organization. Sec. 447.307(3) (d), F.S.1975.

The prayer of the petition for rehearing is denied.

McCORD, Acting C. J., and MILLS and SMITH, JJ., concur.


author: SCHEB, Judge.

text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, et al., Appellants, v. LAKE PADGETT PINES, a Florida co-partnership, and Pasco County, a political subdivision of the State of Florida, Appellees.
    Nos. 76-164, 76-184, 76-223, 76-248, 76-270 and 76-301.
    District Court of Appeal of Florida, Second District.
    June 4, 1976.
    Rehearing Denied July 1, 1976.

      John T. Allen, Jr., St. Petersburg, and W. Gray Dunlap, County Atty., Clear-water, for Pinellas County.
    Carl R. Linn, City Atty., St. Petersburg, for City of St. Petersburg.
    A. Fletcher Dyches and Thomas E. Cone, Jr., of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for Southwest Florida Water Management District.
    Louis F. Hubener, III, Tallahassee, for Division of State Planning.
    Louis de la Parte, Jr., Tampa, for West Coast Regional Water Supply Authority.
    Roger S. Tucker, St. Petersburg, for Tampa Bay Regional Planning Council.
    Barry Lessinger, Tallahassee, and Michael H. Feiler, Detroit, Mich., for appel-lee, Lake Padgett Pines.
    Jacob D. Varn, Roger D. Schwenke, and Steven L. Sparkman, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee Pasco County.
   SCHEB, Judge.

The central issue on this appeal is whether the trial court erred in holding the Cypress Creek Well Field project in Pasco County to be a “development of regional impact” as defined in Fla.Stat. Ch. 380. We hold it did and reverse.

Appellee/plaintiff Lake Padgett Pines, a Florida partnership, filed its complaint naming Pasco County and the appellants herein as defendants; the appellants being those several governmental entities involved in various roles in the project. Pasco County, not having taken an appeal, is now an appellee before this court.

Development of the Cypress Creek Well Field in Pasco County was undertaken to furnish water to densely populated Pinellas County. The plaintiff, a developer with large land holdings nearby the project, alleged that the construction and operation of the well field constituted a development of regional impact (DRI) which was proceeding without complying with Ch. 380. Lake Padgett contended that, as a result of the project, it would suffer damages different in kind from those which may occur to the general public in that the well field will jeopardize the water supply from its own wells, lower the level of the lakes on its property, and result in other damages peculiar to its lands. It sought to enjoin the appellants from continuing the project and from pumping from the well field until compliance with the requirements of Ch. 380.

At the present posture of this case, we find a summary judgment entered in favor of the plaintiff Lake Padgett with the trial judge having found that the Cypress Creek Well Field (and a flood detention area which was “inextricably related”) were DRI’s under Ch. 380. In a supplemental judgment the trial court ordered compliance with Ch. 380, and enjoined continuation of the project until such compliance was effectuated, with the stipulation that if the development does not meet such requirements, then the defendants were “permanently and forever restrained and enjoined from further development activities upon said water retention or well field project.” The appellants challenge this determination made by the trial court while Pasco County supports Lake Padgett’s position that the court correctly found the project to be a DRI under Ch. 380.

Prefatory to discussing the applicability of Ch. 380, we address procedural questions raised on this appeal as to whether Lake Padgett, a partnership, had capacity to bring suit without joinder of all of its partners and, if so, whether it had the requisite standing to seek to enjoin the alleged violation.

Under the common law, a partnership cannot sue or be sued in its firm name. At common law such a business organization had no identity apart form its members and not being a person, either natural or artificial, it could neither take nor hold legal title to real estate. 60 Am. Jur.2d, Partnership, § 88; 24 Fla.Jur., Partnership, § 46. Restrictions on holding and conveying real property were eliminated by Florida’s adoption of the Uniform Partnership Act. Since 1972, Fla.Stat. § 620.S9S has authorized a partnership to acquire and convey real property in the partnership name. We recognize that in Aronovitz v. Stein Properties, Fla.App. 3d 1975, 322 So.2d 74, our sister court held that notwithstanding the new Act, each partner who had an interest under a contract was an indispensible party to a complaint seeking enforcement of the contract. In our judgment such a construction cannot be applied to preclude Lake Padgett, a partnership with statutory authority to hold and convey title to real property in its partnership name, from litigating to protect its interest in that real property. To this extent, we find the instant case distinguishable from Aronovitz. Moreover, in view of RCP 1.210, which provides for actions to be prosecuted by the real party in interest, it appears that a partnership recognized as an entity for the purpose of holding and conveying title would, indeed, be such a party.

Appellants’ contention that Lake Padgett lacks standing to sue stems primarily from this court’s opinion in Sarasota County v. General Development Corp., Fla.App. 2d 1976, 325 So.2d 45. There, Sarasota County sought a declaratory judgment that General Development was in violation of Ch. 380, and this court, speaking through Judge Boardman, held that the City of North Port, wherein the affected lands were situate, was the only local government with standing to seek to enjoin alleged violations of Ch. 380, and that under the statutory scheme set out in Fla.Stat. § 380.07(2), the county which had neither title to nor zoning authority over the lands lacked standing to enter the controversy. Fla.Stat. § 380.07(2), affords ample protection of the interest of the general public by authorizing the local government and the appropriate regional planning agency and the State Land Planning Agency to appeal matters concerning DRI’s directly to the Florida Land and Water Adjudicatory Commission. And, to have sanctioned the county injecting itself into that controversy would merely have placed an additional layer of government into the statutory scheme of protection of the public. While intervention of that character could have been provided for under the statute, it has not been so expressed by the Legislature. Here, however, as an owner of substantial nearby land holdings, Lake Padgett alleged and the trial court determined that the damages which could accrue to Lake Padg-ett from a project of this character and magnitude would be materially different in kind from those affecting the public generally. While governmental agencies exercise concern for the general public; nevertheless, a private owner in these instances frequently will have a more direct concern where, as here, such a project has the potential of greatly affecting its own lands. We think these factors adequately distinguish this case from the Sarasota County case, and in our judgment Lake Padgett Pines, as a partnership entity, has not only the capacity but also the requisite standing to litigate the question now under review.

The crux of this dispute between the plaintiff Lake Padgett and the governmental entities which are appellants is whether the regulatory aspects of the Cypress Creek Well Field project, particularly as relate to their environmental impact, are controlled by Fla.Stat. Ch. 373 or Ch. 380. Our determination of this fundamental issue pretermits discussion of various other substantive points raised on appeal.

For perspective, a brief' review of the history and the legislatively declared purposes of each of these two statutory enactments is essential. Ch. 373 is derived from the “Florida Water Resources Act” enacted as Ch. 72-299, Laws of Florida, while Ch. 380 had its origin in Ch, 72-317, Laws of Florida, entitled “The Florida Environmental Land and Water Management Act.” Each of these enactments was a product of the environmentally conscious Legislature of 1972. The Governor signed each Act on the same date and each was filed with the Secretary of State on April 25, 1972.

In Ch/ 72-299 (Fla.Stat. § 373.016) the legislature declared as policy:

(1)The waters in the state are among its basic resources. Such waters have not heretofore been conserved or fully controlled to realize their full beneficial use.
(2) It is further declared to be the policy of the legislature to provide for the management of water and related land resources; to promote the conservation, development, and proper utilization of surface and ground water; to develop and regulate dams, impoundments, reservoirs, and other works, and to provide water storage for beneficial purposes; to prevent damage from floods, soil erosion and excessive drainage; to preserve natural resources, fish and wildlife; to promote recreational development, protect public lands, assist in maintaining the navigability of rivers and harbors; and to otherwise promote the health, safety and general welfare of the people of this state.
(3) The legislature recognizes that the water resources problems of the state vary from region to region, both in magnitude and complexity. It is therefore the intent of the legislature to vest in the department of natural resources or its successor agency the power and responsibility to accomplish the conservation, protection, management and control of the waters of the state with sufficient flexibility and discretion to accomplish these ends through delegation of appro--priate powers to the various water management districts. The department may exercise any power herein authorized to be exercised by a water management district ; however, to the greatest extent practicable such power should be delegated to the governing board of a water management district.

while in Ch. 72-317 (Fla.Stat. § 380.021) the legislative purpose was set forth as:

It is the legislative intent that, in order to protect the natural resources and environment of this state as provided in section 7 of article II of the constitution of this state, and to insure a water management system that will reverse the deterioration of water quality and provide optimum utilization of our limited water resources, and to facilitate orderly and well planned development, and to protect the health, welfare, safety, and quality of life of the residents of this state, it is necessary to adequately plan for and guide growth and development within this state. In order to accomplish these purposes, it is necessary that the State of Florida establish land and water management policies to guide and coordinate local decisions relating to growth and development, and that such state land and water management policies should to the-maximum possible extent be implemented by local governments through ex-istirig processes for the guidance of growth and development, and that all the existing rights of private property be preserved in accord with the constitution of this state and of the United States.

Thus we must view the factual context of this controversy in the light of two statutes, each enacted with the obvious underlying purpose of protecting the environmental resources of the state.

The Cypress Creek project was conceived to supply badly needed water to the City of St. Petersburg and Pinellas County areas. Toward this primary objective, the Southwest Florida Water Management District (SWFWMD), one of the water management districts referred to in the Florida Water Resources Act of 1972, on November 14, 1973, entered into an agreement with Pinellas County, Pasco County, Hillsborough River Basin, and the City of St. Petersburg, dealing with the Cypress Creek Well Field. Therein, the parties agreed that certain lands consisting of approximately 9,000 acres in Pasco County should be immediately acquired and used for the purposes of flood control, a fresh water well field, wild life refuge, and open space recreational area. The agreement provided for title to the lands acquired to be placed in the name of the District (as SWFWMD and the Hillsborough River Basin are referred to collectively) for the benefit of the District, Pinellas County, Pasco County and the City of St. Peters-burg. The project was to proceed in several phases to accomplish the intended purposes. Phase I was to be land acquisition, Phase II was to be construction of test wells and testing of same, with Phase III to be the construction and operation of a well field to supply water to Pinellas County and the City of St. Petersburg. The agreement further provided that the Cypress Creek test program was to be subject to exhaustive tests by engineers, hydrologists, and planners, chosen by all parties to determine if a permanent well field upon the lands would be economically and hydrologically feasible.

Although the referred to agreement was not entered into until late 1973, efforts to obtain water from Cypress Creek commenced with initial land acquisitions and planning as far back as 1971. By the time this suit was filed in April 1975, the project was approaching the stage of development that it could be utilized for production of water. Testimony showed that the planned facilities were about 95% complete by January 26, 1976, when the trial court entered final judgment. By that time some 4.3 million dollars had been committed to the facilities. SWFWMD on January 14, 1976, had authorized the pumping of 10 million gallons per day at a consistent rate for 12 months. The appellants presented testimony that if during the withdrawal tests any harm was done to the area, that SWFWMD would require pumping to be decreased or ceased altogether.

Lake Padgett contends that the Cypress Creek project falls within the definition of “development” which under § 380.04(1) is defined as:

“ ‘Development’ means the carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three or more parcels.”

“Land” is defined in § 380.031(6) as including “ . . . the earth, water, and air, above, below, or on the surface, and includes any improvements or structures customarily regarded as land.” Pasco County agrees with Lake Padgett, noting that it has consistently maintained the project must be approved by it as the local agency with authority to grant initial approval of DRI’s under Fla.Stat. § 380.06. Both Lake Padgett and Pasco County view the Cypress Creek Well Field Project as a development of regional impact which is statutorily defined in § 380.06(1) as:

" . . . any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety or welfare of citizens of more than one county.”

Pointing out that the legislature intended “to insure a water management system that will reverse deterioration of water quality and provide optimum utilization of our limited water resources,” as one of the purposes of Ch. 380, both Lake Padgett and Pasco County urge that we affirm the trial judge’s finding that the project here falls under Ch. 380. They argue there is a demonstrable need to go beyond the hydrological and into the economic, social and environmental impact of the proposed project. Because of the potential impact of this project as a large scale regional well field and flood detention area, they argue it must receive the environmental review contemplated by § 380.06, which statute they view as implementing the constitutional mandate of Art. II, § 7, of the Florida Constitution of 1968.

The governmental entities, on the other hand, contend that Ch. 380 is inapplicable to the project. They argue that Ch. 373 controls water resources in the State of Florida to the exclusion of Ch. 380, and since no contention is made that the project is not in compliance with Ch. 373, then there are no obstacles to proceeding. They point to implementation of Ch. 380 by Ch. 22F-2, Florida Administrative Code, approved by the 1973 Legislature by House Concurrent Resolution No. 1039, Laws of Florida, 1973, and note that in the specific list of developments of regional impact that water withdrawal or well field construction is noticeably absent from the list which enumerates only projects more traditionally considered as land developments. Conversely, they argue that Ch. 373 addresses water withdrawal and well field construction with specificity. The 1972 Legislature, they state, faced with a history of population explosion and the proliferation of land developments throughout the state and attendant water resource problems addressed both problems and enacted separate and distinct statutes, each of which must and can be given a valid sphere of operation without destroying the intent or meaning of either. In effect then, they contend the two statutes complement one another with Ch. 380 dealing with land development and management and with Ch. 373 addressing specifically the water resource management problems.

While acknowledging that Ch. 22F-2 does not specifically itemize “well fields” as a development of regional impact, Lake Padgett contends that these administrative guidelines do not necessarily list all possible DRI’s but only those which are presumed to be DRI’s. In any event, Lake Padgett argues that such guidelines cannot amend the statutory definition of a DR1 in § 380.06(1), which it contends is “self-executing” and requires no further legislative action. Our conclusions make it unnecessary to pass on whether or not the enumerations in 22F-2 are all inclusive or whether the DRI definition in Fla.Stat. § 380.-06(1) is self-executing.

We have examined the ambit of operation of each of these concurrently enacted statutes. They can and should be construed in harmony with one another in their roles of protecting and conserving our environmental resources and promoting planned developments. In enacting Ch. 373, the Legislature provided for the management of water and related land resources and vested authority in the Department of Environmental Regulations to accomplish the task of conserving, protecting, managing, and controlling the water resources principally through delegation to water management districts. Fla.Stat. § 373.016. Thus the Legislature divided the state into water management districts, SWFWMD being one of those districts. Fla.Stat. § 373.069. Amendments to Ch. 373, enacted by the 1974 Legislature, Ch. 74-114, § 1(2), Laws of Florida, provided for creation of Regional Water Supply Authorities by agreement among local governmental units pursuant to the Florida In-terlocal Cooperation Act (Fla.Stat. § 163.-01) upon approval of the governor and cabinet sitting as head of the Department of National Resources. Water management districts engage only in those functions that are incidental to the exercise of their flood control and water management powers, but may establish water production and transmission facilities for the purpose of supplying water to such counties, municipalities, and regional water supply authorities. Fla.Stat. §§ 373.196; 373.1961. It appears that under Ch. 373, as amended, that while the legislative intent was for municipalities and counties to have an important role, that regional water supply authorities are given the overriding responsibility for water supply.

Environmental aspects were emphasized by the Legislature in 1974, when it amended Ch. 373 to direct that the water management districts and the regional water supply authorities develop, store, and supply water for county or municipal purposes in such manner as will give priority to reducing and adverse environmental effects of excessive or improper withdrawals of water from concentrated areas. Fla.Stat. §§ 373.1961; 373.1962.

As we view Ch. 380, the Legislature intended that to facilitate orderly growth, it was necessary that the state establish overall policies to guide developments within the state, to better protect the quality of life of our present and future residents. Fla.Stat. § 380.021. We recognize the need for such planning and applaud the efforts being made to guide such growth with continued protection of private property interests.

But we are not dealing here in the first instance with a development which will have environmental impact, including an impact on water resources; rather, we are discussing a project specifically designed to provide water for already existing developments in urbanized areas demanding a water supply under Ch. 373. As mentioned, both the Southwest Florida Water Management District and the West Coast Regional Water Supply Authority are required by statute to proceed in such a manner as to reduce any adverse environmental effects of improper or excessive withdrawals of water from the well fields in Pasco County. And, while we recognize the apprehensions of Lake Padgett and Pasco County, we must presume that these apprehensions have been considered and the environmental impact determined before the parties arrived at the Cypress Creek Well Field agreement, and that the environmental impact will be continually monitored by these governmental agencies. SWFWMD’s authorized test pumping program is designed with this in mind.

Lake Padgett and Pasco County contend that a project of this magnitude will have an impact on resources aside from water and that the “multi-disciplinary scrutiny” contemplated by Ch. 380 should be brought into play for protection of the public. However, Ch. 373 is to be liberally construed for effectuating the purposes described in the chaper and these purposes clearly mandate consideration of the total environment, Fla.Stat. § 373.6161. And, given this statutory duty on the part of the agencies to consider the environmental impact of any water withdrawal project, we think such considerations can and should take into account the entire effects of the project and not merely be limited to the effects on a single resource. Cf., Zabel v. Tabb, 5th Cir. 1970, 430 F.2d 199.

Placing the project solely under Ch. 373 for environmental supervision is fortified by the fact that under Ch. 380, the initial decision as to whether to approve a development of regional impact is placed in the hands of the local governmental body with an appeal to the Florida Land and Water Adjudicatory Commission. It is understandable that where, as here, a project is designed to furnish water to a different county from that where the project is located, the home county could well be reluctant to issue the required approval under Ch. 380. This could be devastating to an urban community with limited water resources. The Regional Water Management Districts and the water supply authorities established under Ch. 373 appear to be better structured to make such initial determination on the basis of resolving water problems on a regional rather than a local basis. With water being vital to human existence and considering that water resource problems vary from one region to another, it is desirable that these determinations be made on a regional, rather than on a county or municipal level.

We think this consistent with the purpose clause of Ch. 373, which makes clear the Legislature intended “ . . .to accomplish the conservation, protection, management, and control of the waters of the state with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts.”

We have not overlooked that Ch. 380 does involve water in development of land. As mentioned above, the definitional section of the Act in § 380.031(6) provides that the word “land” includes “earth, water and air.” There may well be projects which will bring into play regulatory aspects of both Chs. 373 and 380 concerning the supply of water. However, we do not believe that in establishing Ch. 380, the Legislature intended for local government to be in a position to control the actions taken under Ch. 373, when those very actions are vital to supplying water on a regional basis. The controversy before us lends emphasis to this premise since the Cypress Creek Project has been made necessary by existing developments rather than by proposed developments which undoubtedly require the “guidance of growth” referred to in the policy declaration of Ch. 380.

It is a cardinal rule of statutory construction that effect be given to the legislative intent of statutes passed at the same session dealing with the same general subject by considering them in pari mater-ia, and that the court should find a reasonable field of operation for each of the statutes without destroying their intent. Tamiami Trail Tours, Inc. v. City of Tampa, 1947, 159 Fla. 287, 31 So.2d 468. We believe that our conclusions provide an area of operation for each to the exclusion of the other in this instance, while still recognizing there may be situations in which the operation of both statutes may well come into play on a particular project.

In sum, it is our opinion that the Legislature considered that the environmental concerns of the State of Florida would be better met by holding that a development whose very purpose is to supply water under Ch. 373, should be regulated solely within the purview of the appropriate governmental agencies set up under that chapter, rather than under Ch. 380. These authorities are in a proper position to make determinations on basis of regional resolution of water problems and should not be thwarted in their efforts to supply water within their regions by the necessity of additional compliance with Ch. 380.

Accordingly, the judgment entered by the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . On a hearing subsequent to issuing the injunction, the trial judge, finding that an emergency water shortage existed in Pinellas County, stayed the injunction, pending appeal, with the proviso that the defendants should only pump such water from the Cypress Creek Well Field as necessary to alleviate the emergency.

      . Ch. 72-108, Fla.Stat. § 620.66, et seq.

      . For further comment on the right of a partnership to sue or be sued under the U.P.A., see Jensen, Is a Partnership Under the Uniform Partnership Act an Aggregate or an Entity, 16 Vand.L.Rev. 377, 382-83 (1963); 60 Am..Tur.2d, Partnership, § 323.

      . “Natural resources and scenic beauty. — -It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall he made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”

      . The appellant Division of State Planning issued the appellants Pinellas County and City of St. Petersburg a “binding letter” under Fla. Stat. § 380.06(4) (a) that the Cypress Creek Well Field is not a DRI. In view of our holding that the project is not a DRI, we need not consider the trial court’s holding that this letter was of no legal effect.

      . The West Coast Regional Water Supply Authority was so created on October 25, 1974, pursuant to Ch. 74-114.

      . AVe note that the home county is afforded protection, for as amended by the legislature in 1974 (Ch. 74-114 § 7(5)), Fla.Stat. § 373.1961 now provides that a water management district
      “Shall not deprive, directly or indirectly, any county wherein water is withdrawn of the prior right to the reasonable and beneficial use of water which is required to supply adequately the reasonable and beneficial needs of the county or any of the inhabitants or property owners therein.”


text:
    TAMPA PROPERTIES, INC., a Louisiana corporation authorized to do business in Florida, Appellant, v. GREAT AMERICAN MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellee.
    No. 75-1555.
    District Court of Appeal of Florida, Second District.
    June 18, 1976.
    John W. Hoft, Jr., of Gregory, Cours, Paniello, Johnson & Hayes, Tampa, for appellant.
    William E. Scheu and Douglas D. Chunn, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   SCHEB, Judge.

The question presented here is whether a Massachusetts business trust qualified to do business in Florida under Fla.Stat. Ch. 609, has capacity to foreclose a mortgage without its trustees becoming plaintiffs in the suit. The trial court held it does. We affirm.

Plaintiff/appellee, identifying itself in its complaint as “Great American Mortgage Investors, a Massachusetts business trust qualified to do business under Ch. 609,” sought to foreclose a mortgage against the defendant/appellant Tampa Properties, Inc. Defendant moved to dismiss for plaintiff’s failure to join its trustees as indispensable parties. The trial judge denied the motion and this interlocutory appeal by defendant ensued.

Defendant argues that the issue here is controlled by Willey v. Hoggson, 1925, 90 Fla. 343, 106 So. 408, where the court held that several persons who owned properties together were to be treated as an association or partnership, and required that an action on their behalf be brought in the name of all owners. We think Willey, supra, is clearly distinguishable. In WiUey there was no showing that the plaintiffs, who styled themselves as a common law trust, had complied with Ch. 9125, Laws of Florida, Acts of 1923, which then regulated such trusts. Here, it is undisputed that the plaintiff business trust has fully complied with Ch. 609, Fla.Stat., empowering it to conduct its business.

The trend seems unmistakable from the recent Florida decisions. In Boyd v. Boulevard National Bank, Fla.App.3d 1975, 306 So.2d 551, the Third District Court of Appeal held such a trust was an entity for purpose of being sued, and in Your Construction Center, Inc. v. Gross, Fla.App.4th 1975, 316 So.2d 596, the Fourth District Court of Appeal held that all of the trustees of a Massachusetts business trust were not indispensable parties plaintiff in a mortgage foreclosure.

Recently, in Pinellas County v. Lake Padgett Pines, Fla.App., 333 So.2d 472, opinion filed June 4, 1976, this court held that under the Uniform Partnership Act, Ch. 72-108, Fla.Stat. § 620.56, et seq., a partnership, with capacity to hold and convey title to real estate, was the real party in interest and was an entity authorized to sue to protect its real property holdings.

Logic dictates that a common law trust authorized to transact business in Florida is the real party in interest and should be allowed to bring suit to protect its interest in this instance. Accordingly, the judgment of the trial court is affirmed.

McNULTY, C. J., and HOBSON, J., concur.