CALIFORNIA TROUT, INC., Plаintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants.
Civ. No. 17532
Third Dist.
Mar. 21, 1979.
90 Cal. App. 3d 816
William R. Attwater, Gavin M. Craig, James T. Markle and Craig M. Wilson for Defendants and Appellants.
Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz, Clifford W. Schulz, Ronald A. Zumbrun, Raymond M. Momboisse, Elleene A.
McCutchen, Doyle, Brown & Enersen, John R. Reese and Barry P. Goode for Plaintiff and Appellant.
P. A. Towner, Russell Kletzing and Marcia J. Steinberg as Amici Curiae on behalf of Plaintiff and Appellant.
OPINION
REGAN, J.—Defendants (board) appeal from the trial court‘s judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff‘s application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff‘s application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the water or diverting it, but rather by putting it to beneficial use inside the stream itself by allowing it to flow naturally and freely in the stream for “preservation and enhancement of fish and wildlife.”1 The adverse action consisted of a refusal by the board to consider the application as it showed on its face there was to be no diversion of water from the stream or any physical cоntrol of the water. The trial court, acting on plaintiff‘s complaint for declaratory relief, declared in its formal judgment that “water may be appropriated within the meaning of the Water Code and California case law without the exercise of physical control of the water.” Moreover, the court declared the board must accept and determine plaintiff‘s application for aрpropriation since plaintiff had “standing” to make such an application for the “public use of protecting fish and wildlife,...” The quoted language from the judgment frames the principal issues raised on appeal. Applicant described Redwood Creek as a navigable river and sought to appropriate three cubic feet per second as the “minimum flow needed to maintain suitable fisheries habitаt so that juvenile anadromous fish can survive and migrate to sea.”
On appeal, the board contends that water may not be appropriated within the meaning of the Water Code without the exercise of
The entire history of the origin and development of the doctrine of appropriation of water in Califоrnia, existing alongside the ancient common law concept of riparian rights, demonstrates that appropriation of water in the legal sense involves possession of the water, evidenced by some form of diversion or physical control over it. The courts from the very birth of the legal concept of appropriation of water have uniformly evidenced the basic common element of possession. Sometimes it is referred to as a “taking” of water, “diversion,” or a “physical control.” (See, e.g., Tartar v. The Spring Creek Water and Mining Co. (1855) 5 Cal. 395—use of a water wheel to power a mill; Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524 [192 P. 144]—diversion of water from springs for domestic and milling purposes; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424 [90 P.2d 537]—impounding water in a reservoir.)
Concomitant with the possession concept in the law of appropriation is the relationship between appropriation and legal right of access to a stream with incidental right to use water. Under such circumstances, аn appropriative right may arise, as distinct from riparian rights. Such cases are illustrated by situations in which, for example, an owner of livestock with legal right of access to a stream may gain an appropriative right to use water from the stream for his cattle to drink. (See Hunter v. United States (9th Cir. 1967) 388 F.2d 148.)
Although the concept or doctrine of appropriative rights to water was first recognized by the courts (e.g., Irwin v. Phillips (1855) 5 Cal. 140) it was soon formalized in California into a statutory pattern. Thus, in 1872, statutory procedures for obtaining appropriative water rights were enacted. These were first contained in
The statutory pattern makes it plain that possession of some sort must be taken of the water. The most pertinent statute is
The present water law with respect to appropriation is well summed up by one eminent authority as follows: “To constitute a valid appropriation of water, three elements must always exist: (1) An intent to apply it to some existing or contemplated beneficial use; (2) an actual diversiоn from the natural channel by some mode sufficient for the purpose; and (3) an application of the water within a reasonable time to some beneficial use.” (Hutchins, The Cal. Law of Water Rights (1956) p. 108.)
Our reading of the overwhelmingly supportive case law and statutes on the subject leads us to a complete accord with Hutchins. (Id., at pp. 108-112, and cases and statutes therein cited.) We hold that plaintiff‘s application showed on its face that no legally recognized appropriation of water was contemplated and the application was properly summarily rejected by the board.
Since it may be thought by some that the statutory and case law appropriation of waters in this state have somehow callously overlooked the interests of fish and fisheries in the watercourses of the state, wе deem it appropriate to point out that there are protections afforded to such interests by existing law, working in conjunction with the law of appropriation of water. Thus, the Legislature has provided in sections
The Legislature has enacted other specific statutes which establish the method to be followed to protect and enhance fish and wildlife species.
The board also contends an application by a private party, such as plaintiff, to appropriate water cannot be accepted where the appropriation would be for the exclusive public use of protecting fish and wildlife. In view of our holding as set forth above, we need not consider the issue of plaintiff‘s standing as an applicant.
Having determined we must reverse the trial court‘s judgment that the board “must accept and determine on its merits” plaintiff‘s application to appropriate water, we turn to plaintiff‘s cross-appeal contending that under the provisions of
The trial court having erred in rendering judgment for plaintiff, plaintiff is ipso facto foreclosed from any right to attorneys fees at the trial level, and since on appeal we shall reverse the judgment below in plaintiff‘s favor, plaintiff is likewise foreclosed from attorneys fees on appeal.
The judgment is reversed.
Puglia, P. J., concurred.
REYNOSO, J.—I dissent. “Appropriation of water” in California is simply a way of designating who is entitled to what portion of water. Respondent asserts and appellants agree that an appropriative right can be perfected without diversion of the water. But appellants mistakenly maintain that some physical control must be exercised over the water: the true test of an appropriative right is the successful application of the water to a beneficial use. In those cases where beneficial use required a
Nonetheless, the majority attempts to fashion a common law rule requiring that an appropriative right be evidenced by diversion, possession, or physical control. In doing so, it cites cases which hold only that diversion, possession, or physical control was a means of demonstrating prior rights to would be appropriators. (See Irwin v. Phillips, supra, 5 Cal. 140; Tartar v. The Spring Creek Water and Mining Co., supra, 5 Cal. 395.) But what may have served to notify the pioneеrs as to who was already using the water has become obsolete in modern times. In an increasingly complex society, the State Water Resources Board (Board) has been created to allocate water use through the workings of a governmental machinery and not on the basis of priority claims as staked on the land.1
In effectuating water law in this case, the Board looks to the Water Code. Contrary to the majority‘s interpretation, I conclude that
In addition, the California Constitution anchors the state‘s water policy on beneficial use: “It is hereby declared that . . . the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable. . . .” (
The question remains as to what type of in-stream use the appropriation may serve. Respondent seeks to appropriate water which it will not use exclusively. In fact, it stipulates that its use will be coexistensive with the public use. I believe that respondent, as a private party, may appropriate water for the public use. That is, respondent may assert the public trust contained within the fish and wildlife resources of the states. (See Marks v. Whitney (1971) 6 Cal.3d 251 [98 Cal.Rptr. 790, 491 P.2d 374]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462 [91 Cal.Rptr. 23, 476 P.2d 423]; Bohn v. Albertson (1951) 107 Cal.App.2d 738 [238 P.2d 128].) There is nothing in the Water Code to suggest that a private appropriator must benefit to the exclusion of the general public. Indeed, that an appropriation benefit only the appropriator is inimical to the very concept of beneficial use. Both the California Constitution and the Water Code demand that a proposed use benefit the society as well as the private appropriator. Thus, the Constitution states: “[T]he general welfare requires that the conservation of such waters is to be
Accordingly, I would affirm the trial court‘s judgment that neither diversion, possession, or physical control is an essential element of a valid appropriation right, and that the board should accept respondent‘s application for a permit to appropriate water for public, in-stream use. As pointed out by the Department of Water Resources in its amicus brief, the public cannot be left in a position of nay saying every private application for appropriation. Since it is up to appellant to make tough decisons as to the appropriate use of the water the appellant Board should not deny itself the authority to make a decision as to whether or not the water is best used for purposes sought by the respondent. The appellant Board may not agree with the respondent‘s application; it may agree and later change its mind; or it may agree. What it should not be permitted to do is to decide the issue without deciding.
My conclusion would necessarily lead to the consideration of attorney‘s fees. (See
A petition for a rehearing was denied April 17, 1979, and the opinion was modified to read as printed above. The petition of the plaintiff and appellant for a hearing by the Supreme Court was denied July 12, 1979. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.
Notes
“The board shall notify the Department of Fish and Game of any application for a permit to appropriate water. The Department of Fish and Game shall recommend the amounts of water, if any, required for the preservation and enhancement of fish and wildlife resources and shall report its findings to the board. . . .”
Wаter Code section 1243.5 reads as follows: “In determining the amount of water available for appropriation, the board shall take into account, whenever it is in the public interest, the amounts of water needed to remain in the source for protection of beneficial uses, including any uses specified to be protected in any relevant water quality control plan established pursuant to Division 7 (cоmmencing with Section 13000) of this code.“This section shall not be construed to affect riparian rights.”
Water Code section 1260 provides in pertinent part: “Every aрplication for a permit to appropriate water shall set forth all of the following: . . . (d) The location and description of the proposed headworks, ditch, canal, and other works. (e) The proposed place of diversion. (f) The place where it is intended to use the water.” (Italics added.) The application is not required to propose a diversion. Manifestly, the application need not contain such a proposal if it is inappropriate for the intended use.