Bob Paul, Inc. v. Berry Groves, Inc.

FRANK, Judge. The appellants, collectively referred to as “Paul,” appeal from the trial court’s final summary judgment in favor of the appel-lees, hereinafter referred to as “Berry.” We have considered each of the three issues urged by Paul as a basis for reversal of the trial court. We affirm the summary final judgment. The factual setting in which this dispute arises is summarized as follows: Paul and Berry own adjoining citrus groves in Hen-dry County, Florida. The source of the water normally used to irrigate and at times to flood the groves in anticipation of a freeze is the Labelle Private Drainage District (LPDD). Paul, Berry and others, who are not involved in this proceeding, created the LPDD in an agreement dated March 31, 1965. The distribution of the water supplied by the LPDD is achieved through a three-stage pumping system. Berry pumps water for irrigation and [181] freeze protection from pumps located at stage two, and Paul’s water needs derive from pumps located at stage three. The water supply becomes especially critical when a hard freeze is expected. A severe freeze occurred in January of 1982, which substantially injured Paul’s' groves. Paul sued Beny alleging, inter alia, that a lack of water at stage three prevented Paul’s ability adequately to flood its groves. Paul asserted that Berry pumped more than its share of water at stage two. Our review of the LPDD agreement reveals that it does not contain language prescribing how the water is to be allocated. Although the record discloses the manner in which the parties “thought” the agreement was to operate, the fact is that Paul and Beny did not create an agreement regulating the use or allocation of the water. It certainly is not within the power of the court to rewrite the LPDD agreement. Home Development Company v. Bursani, 178 So.2d 113 (Fla.1965). We are unable to find any defect in the trial court’s final summary judgment in favor of Berry. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, we affirm the trial court’s final summary judgment. SCHEB, A.C.J., and SCHOONOVER, J., concur.