City of Pasadena v. City of Alhambra

Hunt And when court support not. future own. injury his an sustained plaintiff has that when case said injury is being expectant, such ‘estate,’ whether governs in the which a rule down laid injury property, . us. . before case overrule with directions to reversed judgment The demurrer. upon majority opinion rests SPENCE, I dissent. J. Authier, 28 Cal.2d decision in Hunt my expressed dis- the views I adhere to 1379], A.L.R affirm the therefore and I would case, in that

senting opinion judgment. J.,

Edmonds, Schauer, concurred. J., and June No. 19610. Bank. 1949.] A. [L. Respondent, Plaintiff and v. CITY PASADENA, CITY OF Respondents; al., ALHAMBRA Defendants and et OF RESOURCES, Referee WATER DIVISION OF LAND AND Respondent; CALIFORNIA-MI CHICAN (a Appellant. Corporation), WATER COMPANY Goodspeed, McGuire, Pfaff, & Paul Vallée, Harris Richard Goodspeed C. and J. for Appellant. Donald McGuire Chandler, Special

A. E. Counsel, Huís, Harold P. H. Bur- Noble, City ton Attorneys (Pasadena), Carlton, Spencer C. C. Henry Burroughs, Holsinger, Guy Bone, Cornyn, James C. T. City Attorneys (Arcadia), Kerrin, Moore, Gerald E. Robert E. Jr., Hahn, Hahn & Edwin F. Hahn, Potter, Potter & Bernard Potter, Sr., Merriam, Merriam, Merriam, Rinehart & Ralph T. Martin, B. Stoehr, Laurence Frederick Tomp- G. Emmett A. City kins, Attorney (Alhambra), Wright, Special Kenneth K. Counsel, City Paul Garber, Attorney F. (Monrovia), Walter Dunn, F. Reynolds, City Attorneys Thomas (Sierra Madre), Anderson, Anderson & Anderson, Packard, Trent G. John C. Bacigalupi, & Salinger, Elkus Rosenberg, Derthick, Claude Ganahl, Cusack & Cusack, W. J. Wilton W. Webster, Dunn & Sturgeon, Walter Dunn, F. Wright, Chandler & Howard Wright, Bailie, Lake, Turner & Norman Bailie, A. Cruick- shank, Boyle Dunlap, Brooke & & Holmes, Holmes, John W. Doherty, Frank P. Gibson, Dunn Powers, & Crutcher, Ira C. Harold W. Kennedy, County (Los Angeles), Counsel Prichard, S. V. 0. County Counsel, Respondents. Assistant for Weil,

Martin J. Wm. De Martini, McNair, J. J. A. J. Arthur Tucker, W. Kiessig, Guio, F. Gibbons, Jerry Harrison L. A. Powell, H. Douglas Gregg, C. Lawler, Felix & Hall and Pills- bury, Madison & Sutro as Amici Curiae on behalf of Respondents.

GIBSON, Plaintiff city, producer C. J. of water chief square ground from 40a mile basin of water* alluvial-filled Raymond known Area, litigation as the Basin instituted this ground to determine the within the area and enjoin alleged prevent in even annual overdraft order to depletion tual supply. 24 of the Pursuant to section Act, (Stats. 1913, Water in Commission which was then force p. 9091; amended, Deering’s (1937), Act Gen. Laws Code, now 2000-2050), Wat. trial court referred §§ Department matter to the Division of Water Resources of facts, Works Public for a determination ensuing report of in evidence. On the division was received nondisclaiming report parties, basis of this all of the exception California-Michigan of the defendant Land Company, utility appellant Water public and the sole allocating herein, stipulation judgment entered into a restricting production the water and yield. to the safe annual total court, by appel hearing presented The evidence after opposition judgment lant in substan report, rendered a par tially enforcing stipulation against all the terms of the ties, including appellant.

The are principal presented appeal on this whether issues properly the trial court the amount limited Raymond appellant may Basin ground take from Area, placing the burden curtail- and whether it erred dis- ing parties. all Before proportionately overdraft on certain cussing merits, these on the we will consider issues remedy. involving jurisdiction, procedure and contentions Preliminary Contentions complaint September 23, 1937, and was filed on May A dismissal 18, 1944. the trial was not commenced until of Civil Proce mandatory section 583 of Code is made brought to unless the action is dure, except cases, in certain plaintiff has filed his action. years five after the trial within five-year period computing settled, however, that It is going during which, practical purposes, “for all the time because of total impossible, whether this was trial would proceeding sense, or because jurisdiction strict lack of futile,” is to be ex impracticable and be would both to trial Superior Court, 526, 9 533 (Christin v. Cal.2d [71 cluded. terminology employed by trial court with the * In accordance ‘‘ground expression used refer parties, water” will the water beneath ground. surface of the

917 by 112 205, appeal P.2d A.L.R. consumed from 1153] [time granting change Greyhound order venue]; Lines v. Pacific Superior Court, 61, 28 64 during Cal.2d P.2d [168 665] [time military stay might which one defendant was in service and granted]; Superior Court, 11, have been Judson v. 21 Cal.2d 14 P.2d defendant avoided service of sum- [129 361] [time by Westphal mons concealment]; Westphal, evasion and v. 61 Cal.App.2d during 544 coplain- P.2d which [143 405] [time tiff appeal pending].) had an February

The order 8, 1939; of reference was made on report July 16, 1943, referee’s and, thereafter, was filed on respondents proceeded dispatch bring with reasonable cause dependent to trial. The issues to be tried were to a great upon extent the facts to be referee, ascertained and it would impracticable, futile, pro- have been if not prior ceed to trial completion report. It follows the time consumed the reference should be excluded computing five-year period, that, therefore, subject action provisions was not to dismissal under the section 583.

The “Division of Resources, Department Water of Pub- Works, lic California,” appointed State of as referee pursuant 24 to section of the Water Commission Act which provided: brought any “In compe- case suit is court of jurisdiction tent for determination of to water or the use water, . . . may, discretion, the court in its refer such a suit to investigation the state water commission for of and report upon any physical one or more or all of the in- facts volved, event, in which may, said commission in its discre- tion, report solely base upon investigation its its own or inves- tigations or in hearing addition thereto hold a hearings or testimony and take report and the filed the commission upon investigation by such a prima reference for it shall be physical facie evidence of the facts therein found. ...” Every major recent law decision of this court has expressly impliedly approved procedure the reference provided by recommended, section and has in view of the complexity great of the factual issues in water cases and the public involved, interests that the trial courts seek the aid of expert provided advice and assistance for in that section. (See Fleming Bennett, 518, seq. v. Cal.2d et P.2d [116 ; Meridian, Francisco, Ltd. v. San Cal.2d 442] ; Margarita Vail, P.2d 91 P.2d Rancho Santa 105] City ; 558-559 Lodi v. East 533] Cal.2d 918 ; Utility Dist., 316, 341 P.2d

Bay Mun. 7 Cal.2d 439] [60 Dist., 3 Lindsay-Strathmore Irr. Cal.2d Tulare Irr. Dist. v. City Vallejo, 2 Peabody 489, 972, ; v. 575 P.2d 1014] [45 Pendola, 1 Cal. 351, 486]; Wood v. Cal.2d 373-374 P.2d [40 435, 526].) 2d 443 P.2d [35 procedure, it was sustaining approving

In reference and the pertinent consti Fleming in “all of the stated case that in enact legislature safeguards tutional were observed 528.) (18 p. at ing provisions . .” Cal.2d of section 24. . 24 conflicted opinion The did not mention whether section Constitution, pro which III, 1, article section an whether such separation powers, vides for the or discuss invalidly subjects an branch or order of reference executive judiciary. It control of the division and its officers to the 523-525) that (18 pp. was, however, expressly held Cal.2d at power judicial provide 24 exercise of section does not for the is the conclusion division, implicit and in the decision (See, separation governmental powers is observed. that the 526].) also, Pendola, 435, 1 442 P.2d Wood v. Cal.2d [35 may appoint provides 24 that the court effect section witness, investigator expert an but division to act as reg or nothing courts to control there is which authorizes the division ulate, any particular, proper functions of the in mandate, it which, pursuant legislative the manner in making its proceed conducting in its examination shall Fleming expressly held that section report. The case also providing special void law 24 is not unconstitutional and general practice procedure in from the for a variation IV, 25, of the superior of article section court violation Pendola, (18 cf., v. 1 p. 528; at Wood Cal.2d Constitution. 435, 526].) 442 P.2d Cal.2d [35 the refer

There is no merit the contention Public Department should have been made to ence statutory of the Water Commission. Works as the successor 1921, it has abolition the Water Commission Since the 24, the court repeatedly recognized that, under section been Divi pending rights case to the properly refer a Division of predecessor, Water Resources or its sion of Bennett, Rights.* (Fleming v. 18 Cal.2d Water Vail, 11 Margarita v. Cal.2d 442]; P.2d Rancho Santa [116 Utility Bay Mun. ; City Lodi v. East P.2d [81 533] Dist. v. 439]; Irr. Dist., 316, P.2d Tulare 7 Cal.2d [60 g00t. Code, * Compare Water 22, §000, sections Lindsay-Strathmore Dist., Irr. 3 Cal.2d P.2d Peabody City 351, 373 972, 1014]; Vallejo, Cal.2d 486].) complaint is made that some of the men who report worked on the were not available for referee appears, It how cross-examination at the time of trial. ever, supervised prepared report that the man who investigation length testified at and that others who worked report on Appellant also testified at the trial. was afforded ample opportunity witnesses, to examine these and there showing sought testimony persons no that it to obtain the of present. permitted who were not It was to introduce evi contrary appearing and, dence to the report, facts in the under all circumstances, opportunity no of the there was denial opposition report. to be heard in Appellant that improperly claims the trial court en larged scope the of proceedings. response the request to a for instructions, court, hearing, referee after a ruled that adjudication the issues should “embrace an of rights of the defendants inter se and the of each and ’’ every party against every party. Although each and other respective the answers of the present defendants did not claims against the other defendants and them, not on served we.re the action theory was tried on the that these matters were issue, ensuing at judgment and the limiting the of amount water that pump theory. each could was also based on this The trial court has authority, 24, under include, section to in the matters which are to be submitted to the referee and judgment, determined any necessary proper issues to a controversy. (See determination of the Fleming Bennett, v. 518, Cal.2d 442].) was P.2d It within the dis [116 cretion the trial to necessary court determine whether it was adjudicate to inter se the amount of water to party which each entitled, was and the record it indicates that would have been impracticable solely to decide the matter plaintiff between Moreover, and each appellant defendant. ample had time prepare to scope its after proceed case notice of the ings, any is there no basis for claim that it was misled to prejudice its or process that it was denied due of law. objection The is also made that court erred allocating joinder private without of a number of pumped comparatively users who small amounts. The ref preliminary filed report eree a which stated that it be would impracticable attempt to to parties. include all such It ree

ommended, parties however, named who used that certain action, fairly joined in substantial amounts be objections brought appel court over the ordered them request by appellant for lant. No the inclusion made any party there is no joined, who not been show had ing injuriously affected the failure its interest was (See require joinder possible all claimants. Smith Cucamonga Co., 764].) v. Water 160 Cal. [117 bring pro The line must be drawn somewhere in order im ceeding practical bounds, and it would have been within possible problems involved and to reach solution of if to make an alloca judgment jurisdiction render valid every person depended upon joinder having some tion its potential right water in basin and actual are, supply. persons parties made sources of not they injured by are course, judgment, nor bound injunction. enjoined it be Appellant further cannot contends produces public is to a use. since the water devoted which holding public placed that when a use upon Reliance eases in attached, proceedings has inverse condemnation injunction prohibitory compensation lieu voked (See in most Hillside Water Co. preferred circumstances. 681]; Peabody v. Angeles, P.2d Los Cal.2d ; Newport City Vallejo, 2 Cal.2d 377-380 486] Co., 372, 538 P. 6 v. Water 149 Cal. Temescal [87 chiefly in 1098].) L.R.A.N.S. This rule has its foundation interrupted by public if is the to the service inconvenience (Miller Lux injunction restrain the use & the issuance of an Joaquin Corp., L. P. Cal.2d v. San & Co., Water Maclay Burr Rancho Cal. 1289]; which application problem no to the 715]), and has litigation pro is purpose of this the confronts us here. The by private public and users of the interests of both tection Except supply. preventing depletion of the water further public private, have con parties, as well as ing appellant, all nothing There is purpose. enjoined to be to effect this sented be public would in record to indicate interest pumping of by depriving private users their better served If were done compensating therefor. this rights and them municipalities from purchase their water they would have under water from the same utilities which take public the public supply total available ground area, and the exceedingly Moreover, it would be would not be increased. monetary private party fix difficult to loss of each apportion public then it users. In these among the numerous concluding circumstances, justified trial court was public against enjoining applicable. rule utilities not Findings Judgment Raymond ground Area, located Basin a field of water city Valley, at the northwest end of San Gabriel includes the Madre, por- city Pasadena, Sierra almost all of the tions Arcadia. The field Pasadena, Marino, of South San ground sands, grav- consisting water alluvium contains porous perco- through els and other materials which water range lates. The northern side is formed San Gabriel valley general which mountains rise back of the to a ele- comprises vation of from area feet. The 5,000 6,000 square separated valley along miles and is from rest of the boundary Raymond its Fault, southern sometimes Raymond known Dike, a natural con- fault the bedrock stituting “Barrier greatly a the alluvium . . . which im- pedes area, the sub-surface movement of from entirely although does stop it, it thus creating vast ’’ underground storage pronounced slope reservoir. is a There to the from 1,000 south elevations of feet above level at sea general mountains to Ray- elevation of 500 to 700 feet at mond Fault. part ordinarily this of the state there is a series of wet

years dry years, followed making necessary number it during periods of above-normal rainfall to store water for appears, future It however, ground use. storage that the capacity adequate during years to store the excess wet following dry years. underground Natural formations divide the area into two practically separate units. Unit, larger The Western the two, consists of Basin, the Monk Hill which northwest, and the Pasadena Unit, Subarea. The Eastern or Santa Anita Subarea, immediately lies to the east of the Pasadena Subarea. present At water table elevations ground movement water from the Western to the Eastern Unit is so small as to might immaterial but be increased by an overdraft in the Eastern Unit. Movement from Eastern to the Western totally is Unit lacking. almost Our concern is with the Western principal Unit where the ground water movement is from north and west Hill of Monk to the south and east and Raymond across Fault. The water by rainfall, replenished by arising return water

in this unit unit, by and runoff and from the use water in the the under- Mountains north and flow from the San to the from Gabriel wells, Appellant’s the Rafael hills to the west. from San part production, all are in southeastern which it obtains its the unit, underlying ground water one of this constitutes body parties taking which a common all water source of pumped ground in therefrom. The water from the water yield in every has the safe thereof Western Unit exceeded 1) except year (commencing during since 1913-14 October years yield The 1934-35 and 1936-37. safe of the unit per 18,000 year, feet the average found to be acre but was 24,000 feet, resulting average in an annual draft was acre 6,000 annual overdraft feet. by respect acquired

With to the water the various by them, including parties stipulated appellant, it was all of by parties hat all of the water taken each of the to this t agreement, taken, time was stipulation and at the it was taken notoriously right, under a claim which openly, claim continuously uninterruptedly by asserted was any and all of each and to be and was adverse to claims all it parties joining herein.” of the other year findings per set forth in terms acre feet “the highest production of water for beneficial use in continuous (5) year prior complaint any period filing five of the by parties units, of said as to which each of the each there by any subsequent during no use con- has been cessation of year (5) period.” designated, This con- tinuous five unadjusted right” party, venience, “present of each “by party prescription” concluded each owned the court that water, specified and that right to take a amount of certain equal priority. The parties were of total unadjusted was found to rights for the Western Unit nonparties per year, pumped feet and water 25,608 acre year. also per The court found was 340 acre feet to the action will result draft in these amounts that a continued depletion and the eventual destruction unreasonable any supply; as a that increase water source ground ground deplete taken in Eastern Unit will amounts unit; protect supply in order to. supply in that be limited necessary parties in the Western Unit that the it is ‘ party unadjusted right such reducing ‘present of each unit, less yield said the safe proportion in the aggre- nonparties bears to hereto, therein taken gate parties unit, of such in said and hereto that parties pumping taking each of the or otherwise water from ground the in Eastern Unit the be limited to the amount present unadjusted right.” its The amount of water limited party, designated right,” each the “decreed was out set in findings, gave party the and this allocation each about two-thirds of amount had been pumping. the it enjoined pumping

The court all in excess of the decreed appointed a “Water Master” to enforce pro- the judgment. jurisdiction modify visions It reserved judgment might or make further such orders as be nec- essary for adequate protection enforcement or for Raymond waters in the Basin Area from contamination.

Sufficiency of Evidence Appellant position takes ground that water in the Western Unit is not a single storage contained in basin court, reservoir as found but, rather, flows in certain underground defined streams from portion the northwestern to the southeastern section in much the same manner as water streams, flows in surface together and that streams, these Unit, flow of water from the converge Eastern at the lower appellant’s level where argues wells are located. It its that taking water possibly injure cannot the upper claimants because once has reached a lower level it cannot flow upstream back parties. wells the other report quantity states that no substantial of water from the Eastern appellant’s Unit now reaches in- wells. It also ground dicates that the analogous the Western isUnit to water stored in a large lake or reservoir, through which slowly several Raymond currents flow from inlet to outlet. Fault is similar impedes to a dam in that it the movement up water and backs it area, over a pump- considerable ing tests established that when the water table was lowered in well, one the effect could be measured in wells almost away. miles These tests comparatively were conducted over periods short time, greatest being about days, three since the water very slowly through moves alluvium, could be inferred that the effect would have been much more widespread if test-pumping had been continued for longer time. nothing in compel

There the record which would a find- ing that the difference in elevation between the Monk Hill Basin great and the Pasadena Subarea is so wells that entirely by long-continued

northwest will be unaffected exces- pumping Moreover, sive ref- elsewhere in the unit. as the points out, eree the serious overdraft the area where appellant directly water, pumping takes its and its reduces supply where water is most needed. The shows record that in view Hill Basin of the smaller overdraft in the Monk parties greater situated under there suffered a ratable cut injunction persons Subarea, than the Pasadena appellant helped injured has been rather than inclu- storage of Monk part underground sion Hill Basin as area.

Appellant yield greatly under- contends the safe stated, little, any, Eighteen and that there was if overdraft. per year yield acre thousand feet was found in to be the safe the Western Unit, figure upon report and this was based changes referee which in- calculated the amount from underground the water stored and in ele- the water table compared by vation as with the amount extracted of water pumping. It is asserted that the referee failed measure and include the underflow from the San Gabriel Mountains upon by and the waters conserved artificial means. surface underground All water, automatically sources of however, were by by included employed the method of calculation the ref- eree, necessary and it was not specific to make measure- by appellant. Moreover, ments mentioned many it is obvious from report statements that surface conservation and given by underflow were full consideration the referee.

The Main Issue question There can be no that the trial court had author ity taking ground to limit the purpose water for the pro tecting supply preventing permanent undue low ering (Burr Maclay of the water table. Co., Rancho Water 154 428, ; City 438 City Cal. P. San Bernardino v. [98 260] 16 Riverside, 7, 186 784]; cf., Cal. P. Allen v. [198 Califor Co., 466, nia Water & Tel. 29 8].) Cal.2d 485-486 P.2d [176 problems presented The main parties are which of the should curtailing bear the burden of production the total unit yield proportion, any, the safe and what if pumping by particular party each stipu should be restricted. Since the by parties lation made pump the other as to reduction ing binding upon necessary appellant, each is not it is appellant’s determine producers relation to the other in the same manner as if there had agreement. been no question The curtailing of who shall bear the burden of overdraft, depends upon legal and in proportion, what particular nature right and status held each party. Eights in water in an underground basin, so far pertinent here, are overlying, appropriative, classified as prescriptive. Generally speaking, overlying right, an analogous riparian to that of stream, owner in a surface right is the of the owner of the land take water from the ground on underneath use his land within the basin or watershed; right ownership is based on of the land and appurtenant (See thereto. Hillside Water Los An Co. v. geles, 10 677, Bay Cal.2d ; Miller v. Cities [76 681] Co., 256, Water 157 Cal. 279-280 P. 27 L.R.A.N.S. [107 772]; 26 271-277; Wiel, Rights Cal.Jur. Water ed., [3d 1911], §§ 1100-1105, pp. 1040-1045.) The of an appropriator depends upon taking (See actual of water. 277.) 26 Cal.Jur. The term “appropriation” is said some properly authorities to be only used with reference to the taking of water from public a surface stream on land for non- riparian purposes. (See Wiel, Rights ed., Water [3d 1911] §§ 228, 1107, 1158, 1159, “reprint in the ed.” of § 231 ed.; Farnham, the 3d Rights Waters 672a; and Water [1904] § 599.) Am.Jur. courts, California however, use the any term to taking refer to of water for other riparian than overlying (City uses. City San Bernardino v. River side, 186 Cal. 13-14 P. ; Maclay Burr v. Rancho 784] Co., Water ; Cal. Katz v. Walkin 260] shaw, 116, 141 Cal. 135 663, 766, P. 74 P. Am.St.Rep. 99 [70 64 35, 236]; L.R.A. 273-274.) see 26 Cal.Jur. a taking Where may is wrongful, ripen prescriptive into a right.

Although law at one time was otherwise, it is now overlying any clear an person owner or other hav ing legal right to ground may surface or only water take reasonably he such amount as needs for purposes. beneficial (Katz v. Walkinshaw, 663, 141 Cal. 116 766, P. 74 P. [70 99 Am.St.Rep. 35, ; Peabody 64 L.R.A. City v. Val 236] of 2 lejo, Const., 351 ; XIV, 3.) Cal.2d P.2d Cal. art. [40 486] § requires greatest Public interest that there be the num ber of supply uses which yield, beneficial can and water may appropriated be for subject beneficial uses priority. (Peabody of those have a City who lawful v. of 2 Vallejo, 351, Any Cal.2d 368 486].) P.2d water not [40 having needed the reasonable of prior beneficial uses those rights is excess surplus or sur water. California

926 plus privately may appropriated on owned rightfully water public nonoverlying uses, land for such as devotion to a use exportation beyond (Peabody or v. the basin or watershed. City Vallejo, 351, ; City P.2d 2 368-369 Cal.2d [40 486] of of City Riverside, 7, 29, 30 San 186 Cal. Bernardino v. [198 of ; Maclay Co., 428, 154 436 P. Burr v. Rancho Water Cal. 784] 116, 135 Walkinshaw, P. Katz 141 Cal. P. ; v. [98 [70 260] 26 Am.St.Rep. 35, 236]; 74 P. 64 Cal. Jur. 766, 99 L.R.A. see 32 seq., 273-274.) et use policy is the to foster the beneficial

It state discourage waste, surplus, of there is a water and and when ground water, prior rights the holder of whether of surface (Peabody City Val may enjoin v. appropriation. its of 26 lejo, 351, 368-369, 486]; 2 372 P.2d see Cal. Cal.2d [40 however, overlying use, paramount, is 277.) Proper Jur. being appropriator, limited to the amount of an yield overlying owner in surplus, must to that of the appropriator gained has shortage, of a unless the event prescriptive rights taking nonsurplus through the waters. rights, overlying owners, like those of As between belonging to as are correlative and are referred riparians, only his reasonable share when common; may use to all each (Katz v. Walkin is the needs all. water insufficient to meet 766, Am.St.Rep. 35, P. 99 shaw, 141 P. Cal. [70 269-273, 276; cf., 25 ; Cal.Jur. 64 L.R.A. see Cal.Jur. 236] however, the appropriators, As between 1063-1067.) prior appropriator and a right, one first in time is the first up he needs, he to the amount that to all is entitled may subsequent appropriator past, in the before has taken City Riverside, v. any. (City Bernardino San take cf., Code, 1414.) ; 7, 26-28 Civ. Cal. § 784] acquired by taking rights are not Prescriptive may injunction no issue water, since surplus or excess surplus appropriator take taking and the against the however, overlying both compensation; giving without protection are entitled appropriators owners and infringement of their any substantial against courts beneficially (Pea need. reasonably they in water which 368-369, Vallejo, City Cal.2d body taking appropriative Accordingly, 486].) may ripen pre into wrongful surplus which is not notorious, actual, open where the use scriptive right owner, continuous original and adverse hostile years, and under statutory period of five for uninterrupted 927 City Riverside, claim v. right. (City of San Bernardino of of 7, P. 784]; Walkinshaw, 186 22-23 Katz Cal. v. 141 Cal. [198 116, 663, 35, 766, Am.St.Rep. 135 P. 74 P. 99 64 L.R.A. [70 1178, 25 26 236]; 1157-1158; 585; Cal.Jur. 1 Cal.Jur. Cal.Jur. 278-279; cf., Ragle, 759, Wutchumna Water Co. v. 148 Cal. perfect 162].) upon pre 764-765 P. To a claim based [84 scription must, course, there be conduct constitutes which rights actual invasion of the former owner’s so as to bring entitle him (City Angeles City an action. Los v. Glendale, 68, 289].) Appro 23 Cal.2d 79 P.2d [142 of priative rights prescriptive ground water, as well rights overlying owner, subject of an are to loss adverse user. This inis accord with the rule announced dealing cases (See a surface stream. Yankee Jim’s Crary, Union Water 504, Co. v. 25 Cal. 508-509 [85 Big Am.Dec. 145]; Valyermo Rock M. W. Co. v. Co., Ranch Cal.App. 78 266, 264]; Peabody City 273 P. v. Val [248 lejo, 351, 2 Cal.2d 374 486]; P.2d Duckworth v. Watson [40 Co., ville etc. 150 Cal. 529-532 338]; P. Gale, Davis v. [89 26, 35 ; Cal. Farnham, Am.Dec. Waters and [91 554] Rights 680a, Water [1904], p. 2106; 1 Wiel, Rights Water § ed., 1911], 580, pp. 625-626; 773.) [3d Am.Jur. § present

In the case some the parties, including owners ranches, golf clubs, cemeteries, pumped have solely for use on land, their own rights and their at the outset overlying. were principal of water, takers however, public utility are corporations municipalities which have exported either water or have used it within the municipal Western Unit for purposes pub or for sale lic, and taking, commenced, their entirely when appro priative. (City City San Bernardino Riverside, v. Cal. ; Township Eden County Water Dist. 784] Hayward, 218 Cal. 492].) Appellant exports about produced three-fourths of the water it to area, customers located outside the and it claims overlying rights as to the- other one-fourth which it takes. As to the exported water rights clear that overly its could not be ing character, but appropriative are either or prescriptive.

It from foregoing that, follows prescriptive rights if no had acquired, been overlying owners would be paramount, and the appropriators of would depend priority acquisition on under the rule first appropriator in time is the right. first in The latest in time appropriations would then the first to be curtailed yield. limiting production area to the safe If

in of the total simply could be eliminated case, such were the the overdraft by part appropriations, since the enjoining a of the latest satisfy ample water to the needs that record shows there appropriators, of the and overlying of all and most users depend primarily upon appellant’s rights appropriative would acquisition. in priority of time of evidence appellant principal dispute respondents, The between and any however, rights water in Western concerns whether and, so, prescriptive Unit have if to what extent. become Respondents rights parties, that includ- assert all the ing overlying appropriators, both users and have become against mutually prescriptive parties and, all other accord- prior equal standing, ingly, that are of with none all paramount. Appellant, hand, contends that or on the other acquired, reality prescriptive rights in and no have been injury of the has been no actionable invasion or there has right party each been any party using water because any in party and no has able take all water it needed the. any It by party. other prevented taking of water manner even an over- appellant’s theory, that not follow, would under against a injunction an lying have obtained owner could subsequent taking. disputed if look, therefore, must to see elements

We by right shown the record. Most of prescriptive for a are stipulation by the in which all covered factors are joined, namely, of the including appellant, that “all parties, stipulation parties to this and eáeh of the water taken openly, taken, was taken notori- agreement was, at the time it right, claim which claim was ously, under a uninterruptedly by it to be asserted continuously and any all of claims of each and the other was and all adverse necessary omitted: Two elements are joining herein.” parties user over which the adverse con- length period The of the user, any. if extent of actual adverse nature and tinued desig- clearly finding which supports the The evidence per year highest “the continuous in terms of acre feet nates year (5) any five use water beneficial production complaint by par- filing each of prior period been no cessa- there has units, as to which in each of said ties (5) subsequent five during any continuous by it use tion of year period.” ad there has been actual record shows an inva- There was in Western Unit. water user of

verse sion, least, to some at extent of both overlying appropriators owners commencing year in the 1913- 1914, when the overdraft first occurred. taking Bach yield, excess of safe subsequent whether appropriators by prior increased use appropriators, wrongful injury and was an the then existing owners rights, overdraft, because the from very begin- its ning, operated progressively to reduce the total available supply. Although no immediately prevented owner was from taking the needed, report water he demonstrates that a eventually continuation of the overdraft would result such depletion supply underground stored in the basin inadequate. injury that it would become The thus did not disability an involve immediate water, obtain but, rather, it of lowering consisted the continual of gradual the level and reducing of the total amount of stored water, the accumulated effect which, period of years, after a of would be to render the supply insufficient to rightful meet the needs of the owners.

The proper preserving time act in supply is when commences, overdraft and the aid of the courts would come entirely too late and be inadequate if, appel as suggest, lant seems to possess those who rights could legal proceedings commence until the supply was so greatly depleted actually it became difficult or impos sible to obtain quantity water. Where the withdrawn exceeds average annual amount contributed rainfall, it underground manifest that store gradually will be de pleted eventually and, and exhausted, accordingly, in order prevent catastrophe, such a it has proper been held to limit use all total consumers equal, amount as near may be, average supply enjoin as and to takings in quantities or destroy such in such a manner as would or en underground danger source (City of water. San Ber ; City Riverside, 7, nardino v. 186 Cal. 15-16 P. 784] Maclay Co., Rancho Water Burr v. 428, Cal. is, therefore, 260].) There no merit to the contention that the injured by owners were not the additional surplus all appropriations made after taken, waters were and they clearly injunctive were entitled to obtain relief to ter in takings surplus minate all excess of the as soon as it became lowering apparent from the of the well levels that the under depleted ground if pumping basin would the excessive were continued. resulting lowering of water table from parties, plainly in the wells of the was observable

overdraft own af appellant’s water levels in wells and the records of changes yearly about example from ford an excellent Using 1937, complaint herein was filed. 1919 to when the year figures to minimize at about the same time each taken variations, appears that the sur the effect of seasonal in was at an elevation appellant’s face of the water well No. compared August, 1920, feet sea level in of 559 above of 74 feet. 1937, amounting drop in to a August, 485 feet level in 570-foot Appellant’s No. 4 was at the well measured drop of 1937, a 1920, September, at 499 in August, feet August, well 5 was at 553.1 feet Appellant’s 71 feet. No. 39.1 feet in 1937, drop a 1928, August, and at 514 feet in at the 542- years. nine Well period the shorter No. 1924, November, August, 1919, foot at 568.2 feet level Ap feet. August, drop 515 feet in a of 27 1937, and at net October, pellant’s well No. 7 was at 565.2 feet in No. 8 81.2 Well August, 1937, drop 484 feet in feet. at only no records for 1937 and there are has records appar wells, has appellant for two other Nos. and which ently abandoned. charging ap- clearly justify evidence is sufficient to

This deficiency rather than pellant with notice that there was causing the overdraft surplus appropriations and that prior overlying owners were invasions of the prescription being present appropriators. elements of The. origi- against ran record, the statute of limitations in the their rights of whatever extent nal holders water to lawful rights were' invaded. rights of all

It must next be determined whether the only all or prior owners invaded and whether of the were damaged. any right particular of the owner was part a of as rights appropriators been established that the of It has courts be the overlying protected of owners will well as the type right will start an invasion of of and that either subsequent Where, here, appropri running of the statute. continued, supply acts, if the available and their ators reduce to impossible prior a it for the holder of will render enjoinable In this future, there an invasion. in the pump overlying and between an owner respect no difference there taking may Although a prevent neither appropriator. may to waters, legal proceedings either surplus institute of to safeguard supply surplus once a exist the ceases enjoin any beyond yield. point additional user the of safe proposition appropriator’s

Cases are cited for the that an rights quantity are not invaded if he continues to receive the cases, of to which he is These not however, water entitled. do problem gradual depletion deal with the of water stored but, lake, rather, a basin or with surface streams or ditches in which water flows but is not retained for future use. The type injury deprive there immediately considered would water, the language owner of opinions in the does not apply rights to an invasion in a supply stored of water to only years. be used (See future Rondoni, Faulkner v. Cal. ; P. Howard, Peck v. Cal.App.2d [37 883] 308, 328 753]; City Diego Cuyamaca San Co., Water Cal. 475].) overlying appropriators nor owners

Neither protect rights steps the aid of the courts their took to obtain instituted, many years until present action was after the glance overdraft, of the and at first commencement it would wrongfully parties appropriated seem follow that the who years acquire period for a five prior water would prescrip rights running tive to the full amount so taken. The statute, effectively however, interrupted by can help self part on property right of the lawful owner involved. respect Unlike situation with surface stream where wrongful taking an appropriator has the immediate ef preventing fect of riparian receiving owner from in the wrongdoer, amount taken owners water present in the immediately case were prevented taking water, they from in fact continued pump what they ever seen, Raymond needed. As we have Basin Area large is similar to reservoir, lake or and water would be available until exhaustion supply. The owners were injured only respect to their to continue to pump at some future date. The only invasion was thus a partial one, completely since did not original oust the owners of rights, period and for the original entire both the wrongdoers owners pump continued to all the water they needed. pumping by group, actually each however, interfered with group other produced that it an overdraft which operate would impossible to make it for all to continue at the same rate in the If original future. owners water rights had been completely -ousted pump had failed to five-year a period, then there would have been no interference part by

whatsoever on the of the owners with the use wrongdoers, wrongdoers perfected prior and the would have they prescriptive rights pumped. to the full amount which As and, seen, however, case, although we have such was not the pumping party of each to this action continued without interruption, necessarily pos- it with interfered the future sibility pumping parties lowering of the other each original acts, their the water level. The owners own although by judicial assistance, acquired thus retained or right in the future. The a to continue to take some water acquired wrongdoers prescriptive to continue to also water, rights were limited to the extent that take but their original acquired rights by retained or their owners pumping. analogy may Hampshire,

A partial be found in Smith appellant had constructed Cal.App. 224], where the ’ respondents adversely for land used a ditch across the years, por- a respondents, six had used years, but the adversely appellant. It jointly but tion of ditch rights in ditch and that acquired had was held that both claim respondents’ acts, appellant’s hostile to asserted being respondents’ right operated conserve right, exclusive (p. respond- “While 11): said ditch. The court to use the right right way acquire prescriptive ents could not destroy appellant’s land, they claim could over their own right by peaceable, notorious and continu- open, of exclusive (as against their establish use, and thus ous adverse themselves for claim) to use the ditch asserted, exclusive his commingle with his in so their water purpose and a limited ’’ doing. overlying owners in whether the not determine needWe overlying original simply part of their retained volved here rights to prescriptive new they obtained rights or whether 368, 371 Henson, 31 Cal.2d (See Glatts v. use water. important order might become question 745].) possible in the event parties rights of the to ascertain happen. may never these contingencies, but future water must that the position Adoption appellant’s municipalities public between allocated, at least as time of priority strictly basis on the utility companies, prin only ignore the fundamental would not appropriation against persons runs of limitations statute ciple invaded, but it would rights are when their to act who fail curtailing unequal in an sharing result the burden authority in pumping overdraft that under of all conducted appropriations certain the be completely of later would eliminated, im- whereas no amount would be restriction posed upon pumping appropriations. earlier Such based on a justified par- result all of appear does not to be where producing underground ties have been water from the basin many for years, protect none of acted to them have supply prevent rights proceed- or of their until invasion this ing Moreover, probable was instituted. seems adopted by solution promote the trial court will in- best pro terests the public, of because tanto of a reduction present normally amount of water devoted to each use would disruptive be less than total elimination of some of uses. hold, prescriptive We therefore, rights were established by appropriations subsequent made in the Western Unit to overdraft, commencement of the that such were acquired against overlying prior both owners appropri- ators, overlying prior appropriators that the owners and also obtained, preserved, rights by or reason water which they pumped, properly and that the trial court concluded production that the of water unit should limited be by proportionate reduction in party the amount which each throughout statutory had period. taken

Otheb Contentions party by The water allowed each the trial court by five-year was measured the amount taken over period as to which there had been during any no cessation of use sub sequent five-year period. Appellant argues that, in deter mining rights, whether there had been a loss the court applied three-year pre should have the shorter limitation scribed section 20a of the Water Commission which Act, prior was in effect 1943. (Deering’s (1937), Gen. Laws 9091, 20a, Act Code, 1241.) pro now Wat. This § section § party vided: “When the entitled to the use of water fails beneficially any part use all or the water claimed him, for which a vested, purpose use has for the for appropriated which it was or adjudicated, period for a years, three such unused water shall public revert regarded unappropriated and shall as public water.” This however, section, applicable primary is not purpose here. The system issuing act to create a for licenses and permits appropriation surplus (see Deering’s (1937), 1, Act Id, 11, 15, 16), Gen. Laws it is §§ only to refer reasonably that section 20a was intended clear under a license appropriated had been such to water which embraced permit. underground in an basin is not or Water pro- the act licensing system, because section used in sections of the act “water,” term vides that the interpreted to refer relating licenses, “shall be permits or flowing streams only water, and to subterranean to surface (Deering’s through channels.” Gen. known and definite any §42.) claim that (1937), There is no Laws Act were present in the case water involved license, ground permit obtained under such and def- flow in known Raymond Basin Area does not meaning of section 42. inite channels within the years the commence than four before less city began to take a action, of Pasadena of this ment River, which is not quantity of from the San Gabriel water diver Raymond Basin Area. This supply source of of liti settlement part in 1941 as was terminated sion Appellant the river. brought by users of water from gation from the San city imported water when the contends that from the amount which it took River, reduced the it Gabriel therefore, that is now barred and, it underground basin water taking of basin more from out estoppel and laches during period pumped amount than the maximum found, river. The trial court water from the which it used any to take action was not induced however, appellant that not city was importation and that by reason of the and, accord supported by record finding is estopped. The laches is appeal. The on this claim ingly, conclusive is prejudice and failure show sufficiently to answered prior years was less than five time involved fact that the of the action. to commencement that, because to the assertion is no merit There should city of Pasadena policy, the public considerations Metro water from the of its purchase some compelled to be of exer instead of Southern California District politan Water underground basin. from the take water cising its from the purchase right city has the Although compelled city should follow that the district, does not it parties. supply larger to other in order to afford do so capture city Pasadena failure and waters waters underground basin storm return to the not, sewage does flow streets, fight fires, to flush used of sec- in violation constitute waste by appellant, as claimed Storm XIV Constitution. tion of article of the California outside the used for flood carried some water drains control wasted, there is no area, but this does not mean was it any with the use evidence that there was waste in connection ordinary necessary municipal activities. of water in exchange agreement, A water judg enforced signed by appellant, provided city ment but that the pumping Pasadena should restrict its in the Monk Hill Basin and take the remainder of its from share of water elsewhere Appellant in the Western Unit. properly complain cannot provision injured of this it thereby, unless and it could damaged city not be pumped quan unless the such vicinity tities in appellant’s the immediate wells as to impossible render it difficult appellant to obtain the amount of water to which is entitled. No like reasonable lihood of an but, such occurrence is shown, in the event that shortage such a local appellant should take place, may obtain portion relief under judgment reserving jurisdic tion to make such necessary. modifications as become

It is argued next injunction that the should not have appellant limited to a fixed number of acre feet of water a year but, rather, pumping that unrestricted should be long allowed so as the water in the speci wells above some Although fied level. might proper this be a method of safe guarding supply underground basin, water in the there is nothing in compels the record finding which method of adopted by conservation trial improper court is or that it would result raising undue of the water table. Moreover, ample protection against danger such a is afforded provisions the reserving jurisdiction the decree in the trial modify court to judgment the requiring the water master keep monthly to recordings depth of the of water in all wells. refusing

The court did not err in to admit evidence report respect rebut appel offered to the the referee to production from lant’s water 1931 to the end of 1938. Section “ provides Water excep 24 of the Commission Act that [N]o except in discretion, tion shall be considered the court’s or good shown, unless shall appear for some cause it that the exception presented had theretofore matter been to objection.” (Cf., form the commission in the of an Wat. Code, 2017-2019.) Appellant comply did not with this §§ no not requirement good why did showed reason do so. stipulated parties except appellant All that each of leading them who from streams to the had diverted water underground measured basin should be to amount restricted capacity the maximum diversion works “as the same its years prior any (5) existed at to October time within five 1937,” approximately week after commence which was one stipulation this the court ment of the action. Pursuant to right had to take concluded that each of these diverters the against parties appellant, than but this amount as all other expressly enjoined any in the be taken and increase amount to making no as the existence stated that it was determination to rights argued that, against appellant. of such It is before as any injunction issued, determined was the court should have against diverting appellant’s rights parties from as issue, how leading underground streams basin. The ever, clearly pleadings, was raised there was not in the in to the court to sufficient evidence the record enable rights to or as to priority make a determination as yield upon the effect of these diversions the safe in the basin. necessity present securing view of solution for justi area, in the the critical situation basin court rights of leaving open fied in for future determination the appellant diversioners, were against all such some of whom as parties not made to the action. among things, other jurisdiction,

The court reserved yield Eaymond to review of the safe its determination parties affected Basin Area and the of all the as right. any The reservation the abandonment or forfeiture of any specifies change or “in the event material be found that the court such be established” abandonment adjudicate forfeiture ‘ pump right each to party that the decreed can Eaymond ground water from or otherwise take same changed proportionately Basin Area shall be the safe fixed ...” Beview of originally manner as herein. (5) five frequently than at yield was be had “not more would Appellant court year concedes intervals.” readjust rights of jurisdiction power have to retain they law and facts as parties with the in accordance beyond time, that the went may be at but it asserts court which be attained authority and decreed its upon pass jurisdiction as it future insofar reserved provided or forfeited waters abandoned event proportionately in the party of each should altered five-year limi any change or abandonment. material upon yield of safe tation redetermination also chal lenged by appellant. jurisdiction problems

The retention meet of to future changing recognized appropriate conditions is as an method carrying policy of out the to state utilize all water (Allen v. Co., available. Water & Tel. 29 Cal.2d California Angeles 8]; City City P.2d Los Glendale, 23 Cal.2d 289].) present case, trial court concluded that each party “by “present owned prescription” unadjusted its right,” is, that actually pump- the amount which it had been ing. The judgment that, effect of the is to decree while the parties present right, necessary, have this in order to rights conserve preserve the basin and of all parties, to takings yield limit the to amount of safe and there- pro fore to proportionate make a tanto or reduction in the amount can permitted pump which each be to until such time as conditions warrant an increase. This prob- solution of the recognizes original lem rights that the owners have some pump future, continue to in the that at the same time certain prescriptive rights ripened have appropria- on the basis of tions after the commenced, made overdraft and that the parties each of the are measured the amounts of the respective takings. circumstances, Under such proper it is provide that, yield if amount of the safe is increased, permissible taldngs proportionately shall increased up “present unadjusted amount of the right” of each party. adjudication applies existing thus rights, and there is no declaration as to future in water to which party present no right. has Accordingly, the action of the court is City conflict with the statement in San Ber- City Riverside, nardino v. pages Cal. 7 at 30-31 [198 784], effect that court should not undertake to rights. make declaration as to future opinion, however,

We are of the five-year limi upon power tation to review the yield determination of safe purpose tends giving to defeat rule the trial court supervisory powers continual rights cases, and that judgment preserve should be modified to a broad reten jurisdiction change tion the trial court to its decree orders, hearing, after notice and as the occasion require. Paragraph judgment XXI is, therefore, modi by striking fied therefrom the following provision: “and yield the review of its determination of the safe either Raymond or both of said units of the Basin Area shall be had year frequently (5) not more than five the intervals after at. date hereof.” modified, judgment affirmed, respondents

As the to so appeal. recover costs on con- Edmonds, Traynor, J., Spence, J.,

Shenk, J., J., and curred.

CARTER, J. I dissent. rights of limited in this ease are to the While the issues underground appropriators of overlying land owners and cover waters, majority purports to percolating opinion the in the field of range pronouncements in a much wider its Any law must be student this branch of our water law. in conflicting prin- rules and impressed hodge-podge the of with court and the ciples in the various decisions of this enunciated during past particularly of two Appeal, District Courts simply decades, majority opinion in this case or three and the Having affairs. had a somewhat adds to confused state of involving principles experience in the of limited trial cases urge prepare I had the time to law, of water have some years, of in symposium of the decisions our courts recent my law in a state which, mind, to leaves this branch of .our However, I case hopeless confusion. do not consider this in I proper vehicle which and shall to undertake this work propitious await a more occasion. discussion involved, here all issues limited view the no has streams lakes surface

relating to water beginning involved. At the problems here relevancy to the presented cor here are majority opinion, the issues of the on presented principal “The issues rectly as follows: stated limited properly court the trial whether appeal this are ground in from the take appellant amount of water Area, placing whether it erred in Basin Raymond all proportionately on curtailing overdraft burden “Preliminary Con follows a discussion Then parties.” and reference dismissal of action to tentions” relative agree I disposed am Water Resources. Division of division, appel properly referred to were that if the ease However, case to have the dismissed. not entitled lant I impression, disposed first would be case of if this were a (cid:127) appellant’s scope contention that the and effect agree judicial made was a violation here reference of the process. apparent But it is from the recent decisions of this judicial court that process virtual abdication of the courts in process favor the administrative of the division only sanctioned, imposed by has been but has been this upon court trial in cases of this Of courts character. the wisdom of such I imposition grave I have can doubt. see objection, however, no availing a trial court itself of the making use of investigating facilities of the division problems of this data thus obtained the solution char expressed unqualifiedly opposed but I to the view acter, am infallibility of this court relative some decisions division, necessity every and the that trial refer courts problems relating to water involving case to the divi questions accept sion and its determination of all of both I am fact law. convinced from an examination of the just case that record this that what the trial court did determining parties to this action. It principles of obvious that water law. were disregarded, that the division made a upon quantity determination based of requirements water available and respective par ties, and divided accordingly, regardless the water of prior prescriptive appropriations, rights, overlying or They accomplish owners. unique this result evolving a theory new and novel of each acquiring user right against use, the other thus prescription destroying adverse all priorities upon equal placing footing each user other, regardless origin right. time of or bases his certainly This is a “new look” in the field water law. We long way rugged have indeed from come a individualism riparian right “rocking chair” expounded doctrine as in Lux v. Haggin, 919, 69 Cal. P. 10 674]; 255 P. Alta [4 etc. Hancock, Land Co. v. 85 Cal. 219 P. 20 645, Am.St. [24 Rep. ; Southern Co. Wilshire, Cal. Inv. v. 217] 144 Cal. 68 767]; P. Valley Montecito W. Co. v. Santa Barbara, [77 144 Cal. 578 1113]; P. Anaheim Fuller, Union Water Co. v. [77 150 Cal. 978, 327 P. 11 1062]; [88 L.R.A.N.S. v. Huffner Sawday, 153 Cal. ; 86 P. Joaquin San etc. v. 424] Co. [94 Fresno Co., Flume 182, 158 Cal. 626 P. 35 [112 L.R.A.N.S. 832]; Miller & Lux Inc. v. J. G. Co., James 179 Cal. 689 ; P. Robnett, Oliver v. 190 51 ; [178 Cal. P. 716] [210 408] v. Finmand, Pabst 11]; 190 Cal. 124 Herminghaus P. v. [211 Southern Co., Edison 200 Cal. 81 607]; P. [252 California Fall River Irr. V. Dist. v. Mt. Corp., Shasta P. 202 Cal. 56 P. 444, 56 264]; [259 A.L.R. Miller & Lux Enterprise Inc. v. 940 Co., Walker, v. 217 ; Morgan etc. 169 Cal. 415 P. [147 567] ; Oregon 607 Cal. P.2d Moore v. Power [20 660] California Co., Cowell, 22 37 ; Skelly Cal.2d 725 P.2d v. Cal. [140 798] ; 215 237

App. Stepp Williams, Cal.App. P. 52 v. 609] [173 ; P. 109 Corp. McArthur, Mt. Power Cal. Shasta v. [198 661] App. 171 P. 549]; A. v. Enter Pastoral & Co. [292 California prise Co., C. & L. 127 F. and the doctrine cases; and other of prior appropriation, expounded Osgood El Dorado as v. v. 82 564 Co., 571; Burrows, Burrows Cal. 56 Cal. Water etc. 80 P. Curtis, Cal. 397 ; P. De Necochea v. [20 [23 146] Co., 158 W. etc. Cal. ; 22 Duckworth v. Watsonville P. 198] Costanich, 426 P. 927]; Haight v. 184 Cal. P. [194 206 [110 8 P. Co., 207 Cal. ; Joerger v. Gas Electric [276 26] Pacific ; Tellu ; 98 U.S. 453 L.Ed. Jennison v. [25 240] 1017] Ry. Co., 639 v. etc. 175 U.S. ride Power T. Co. Rio Grande pre ; also the doctrine 245, 44 L.Ed. S.Ct. [20 305] v. Han rights, expounded in Alta Land etc. Co. scriptive ; 20 cock, 645, Am.St.Rep. 85 219 P. Southern Cal. 217] [24 ; v. 68 P. Anaheim Wilshire, Inv. 144 Cal. Cal. Co. [77 767] 11 P. Fuller, v. 150 Cal. 327 Union Water Co. [88 P. Robnett, Cal. 51 ; Oliver v. 190 L.R.A.N.S. [210 1062] Morgan 11]; P. ; v. 190 Cal. 124 Finmand, Pabst 408] [211 ; v. P.2d Moore Walker, 660] Cal. v. [20 California ; Skelly v. Co., 22 Cal.2d 725 Oregon 798] Power [140 Williams, 609]; Stepp v. P. Cowell, Cal.App. [173 Corp. 661]; Mt. Shasta Power P. Cal.App. 549], If it be said Cal.App. 171 McArthur, 109 upon philosophy based those eases was the doctrine of say I the doctrine individualism,” would “rugged at bar is based majority opinion in the case in the down laid this bureaucratic communism. Under philosophy upon thought be, established, doctrine, long and what was latter quantity of given use right to divert and a prior, vested a acquired upon with later only placed parity a water not in agency steps of the state but an administrative rights, expense of at the the distribution of such water administers type stateism may This be of obnoxious users. not very many certainly a countries, in other but it is which exists in step direction. As one who believes that definite both federal and state Consti concept embraced within right has private property that owner tutions it ownership and control over and make such use exercise long injury to others he see fit so as he causes no it as thereby, opposed I am to state supervision control of privately privately owned water well as other owned rights, as property. suggested, I know of no and none been reason, has why parties engaged litigation may prepare water present evidence in much support their as probative as value that of Water obtained the Division Resources. 1911, appellant purchased that in

The record discloses immediately Raymond re- Appellant acres north of Fault. (about 10%) original only parcels tains few every conveyance made, appellant In reserved all acres. rights. appellant’s production water One-fourth has been overlying acres used for beneficial uses on the 171 land Raymond exported Basin three-fourths has been Area By for nonoverlying use outside of this area on lands. end season, appellant’s of the 1918-19 minimum annual ex- tractions, extending period over a years, five consecutive produc- amounted to 370 acre feet of water. that, Before its tion was 337 acre feet. Three-fourths of its maintained ex- traction, represent or 284.25 feet, rights; acre prescriptive is, diverted from basin and used on nonover- lying lands. The remainder produced was used overlying on its lands in During the basin. the 1923-24 sea- son, appellant produced on ported three-fourths of lands 403 feet its acre and ex- quantity.

this Between last men- tioned season and the season, appellant 1928-29 produced 521 acre per annum, feet of which 118 acre produc- feet was new tion which had matured since 1919. production, Of this new 29.50 acre feet was overlying used on 88.50 lands and acre represent feet a new prescriptive right acquired during this period. Appellant claims, and the appears evidence to sus- position, season, acquired tain its the 1933-34 had use from prescriptive overlying divert and its lands Raymond feet, 390.75 acre and 130.25 feet Basin acre for overlying land, per uses on said total of 521 acre feet Appellant’s production annum. from said land since the complaint filing feet; is as follows: 1938—613.12 acre feet; 1939—618.73 acre 1940—626.06 acre feet; 1941—578.88 feet; feet; By acre 1942—701.30acre 1943—866.60acre feet. action, appellant’s production in this decree from said land purposes per for all was determined to feet acre quantity appellant’s unadjusted annum which classified right. decree, however, appellant’s limited total diver- per sion to 359 feet purposes. arriving acre annum all foregoing at the trial conclusion, the court determined as a 942 equal parties rights are that all of

matter law each of legal effect; that priority and the same force other right against the acquired prescriptive parties had that water which the court determined quantity for the and no use, was to divert and parties each of said entitled overlying rights of owners distinction was made between the rights acquired appropriation prescription. or ‘ appellant disposed agree I with that One am counsel long any could long, would search books a time before law overlying rights put found can into owners’ be rights, hopper appropriative prescriptive or or come out co-equal appropriative prescriptive rights or with are sure, overlying rights.” can be owners’ I am that no cases found, even in the confused muddled water state of our give support pronouncement. which to such an absurd law may acquire rights California, underground In one in water by appropriation prescription. estab right, Such when lished, paramount overlying (Burr is to that of the owner. Maclay Co., 260]; Rancho Water v. 154 Cal. 428 P. Katz [98 141 Cal. 116 Walkinshaw, 663, 766, v. P. 74 P. 99 Am.St. [70 ; 64 Rep. 35, Riverside, L.R.A. San Bernardino v. 236] ; Peabody City P. Vallejo, Cal. v. Cal.2d 784] 486].) of water involved— are, case, types two There in this nonoverlying overlying owners, and those those of the ‘‘ ” correctly appropriator is think the owners. I term While acquired who water only persons respect to those used overlying owners time the lands of other rights prior the inter- government, in granted by the United were States conjunc- understanding dissent, of this promoting an est of as mean- I shall use the term majority opinion, tion with the words, has ac- ing nonoverlying owner—in other one who overlying the for use other than on land quired underground supply. Walkinshaw, in Katz opinion

Inherent in forth set 35, 64 Am.St.Rep. 74 P. 141 Cal. 116 [70 rights. appears It the doctrine of correlative 236], L.R.A. the law that this doctrine seeks assimiliate of streams—-the waters rights—to underground analogy riparian that of nonoverlying use, overlying lands; as to used when analogy on rights operation. by appropriation XIY, section added to our a new was [art. § 3] designed prevent waste of This section was Constitution. state, and added in the of our interests the waters part as follows: “The reads welfare. section public any in water or from natural right to or to use or flow of water and shall be limited water in this State is stream or course required reasonably for the beneficial such water as shall be to not and shall not extend served, use to be and such does or or unreasonable method of use unreasonable to waste rights Riparian of in a stream method of diversion water. to, or water attach but to no more than so much of the course may required consistently as be used flow thereof or section, purposes this for which such lands are, may for be or in view adaptable, made of such reasonable and beneficial uses; provided, nothing however, that herein contained shall any depriving riparian be construed as owner of the rea- of of riparian sonable use water the stream to which his land is under reasonable use, methods of diversion and or depriv- of any ing appropriator lawfully to which he is entitled. This Legislature section shall be self-executing, and may also enact laws in the furtherance policy in this section [Emphasis contained.” added.] Evidently the quoted first time the above pro constitutional vision by was considered this court was in the case Gin S. City Chow v. Barbara, Santa 217 Cal. 673 5], That case involved the River, Santa Barbara and decided being stream put waters not to a beneficial use riparian owner appropriated, could be and the old law of riparian vested rights supposedly overruled and obliter ated the 1928 constitutional light amendment. In the language certain contained in amendment, said such con appears struction me to to be unwarranted. Those words are “Riparian rights these: in a stream or to, water course attach but to no more than so may much of the flow thereof as be re quired or used consistently with section, this purposes for the are, may for which such lands adaptable, or made be in view of such uses; reasonable and . provided, beneficial . . how ever, nothing herein contained shall construed as any depriving riparian owner of reasonable use of water of the stream to which his land riparian is under reasonable methods of use, depriving diversion and or any appropri ator water to which he lawfully (Italics added.) entitled.” nothing There is quoted above provi- constitutional sion which should be preventing construed an appropria- acquiring tor from a prescriptive right water he has beneficially used for the prescriptive period. If appro- priator using which the may need in riparian wat.er riparian be re- irrigate land, then should his future declaratory judgment in order that such quired to ask it. This him he does need may be available to when language waste, with the prevent and would be line would It would also in the constitutional amendment. contained advantage letting appropriator know have the added may present expect. Under the where he and what he stands obligations, etc., may water, incur rule, appropriator use water, use then, later, riparian desires to when the owner a state of affairs would his taken from him. have Such rocking chair” doc- “old bring on far more chaos than the doing. capable trine was surplus purport expound majority The rules relative answering admittedly water, there is no water

or excess but majority opinion states: a classification this case. such taking acquired of sur “Prescriptive are not against injunction plus water, excess no issue since surplus take without taking appropriator giving majority mean compensation. ...” What If is meant phrase “surplus excess water” not clear. is desire long so as there is water available for those who it, any “surplus water,” use additional water or excess directly contrary to the pronouncement then the above 11 following Vaughn, Ditch Cal. cases: Butte Canal Co. v. & Dixon, 33; v. 769]; 13 Cal. Kidd 143 Am.Dec. Ortman v. [70 ; Laird, 15 Canal Co. v. Cal. 161 Am.Dec. Stein 472] [76 563; Haggin, v. Cal. 255 Co., I. 53 Cal. Lux 69 Kern I. C. ; Hancock, 85 P. Land Co. v. Cal. 919, P. 10 Alta etc. [4 674] 645, Am.St.Rep. ; Inv. 20 Southern Cal. Co. 219 P. [24 217] Valley W. ; 144 68 Montecito Co. Wilshire, Cal. P. v. [77 767] Barbara, ; P. Union 144 Cal. 578 Anaheim v. Santa [77 1113] Fuller, 978, 150 P. L.R.A.N.S. Water Co. v. Cal. 327 11 [88 Co., ; 150 Cal. 520 P. Duckworth v. Watsonville etc. [89 1062] 338]; P. Pogue, v. 151 Cal. 105 Wutchumna Water Co. [90 ; Miller v. ; Sawday, v. 153 Cal. 86 P. [94 424] 362] Huffner Co., 115, 27 Bay Water 157 Cal. 256 P. L.R.A.N.S. Cities [107 Burke, ; Irrigation v. 158 Cal. 165 P. Walnut Dist. [110 772] Joaquin Co., 158 Cal. 626 517]; etc. v. Flume San Co. Fresno ; 182, P. 35 Miller Lux Inc. v. Enter L.R.A.N.S. & 832] [112 prise Co., ; Miller Lux Inc. etc. 169 Cal. 415 P. & 567] [147 716]; Co., 179 689 P. Bernar v. J. G. James Cal. San [178 City ; Riverside, dino v. 186 Cal. 7 P. Antioch [198 784] Dist., ; Irr. 188 P. Oliver v. v. Williams Cal. 451 [205 688] Finmand, Robnett, 190 ; 51 P. Pabst v. 190 Cal. [210 408]

945 ; Herminghaus v. 124 P. Southern Cal. [211 11] California Co., ; 200 81 P. Fall River V. Irr. Dist. Edison Cal. 607] [252 Corp., v. Mt. P. 202 56 P. 56 A.L.R. Shasta Cal. [259 ; Joerger Co., v. 207 8 P. Gas & Electric Cal. 264] [276 Pacific ; Morgan Walker, ; v. 607 P.2d 217 Cal. [20 660] 1017] Miller Dist., & Lux Inc. v. Tulare Lake etc. 219 Cal. 41 [25 ; Peabody 2 City Vallejo, P.2d v. 351 P.2d Cal.2d 451] [40 486]; Lindsay-Strathmore Dist., Tulare Irr. Dist. v. Irr. ; 3 Cal.2d 489 Meridian, P.2d Ltd. v. San [45 1014] Francisco, 13 ; Cal.2d 424 P.2d P.2d Moore 91 [90 105] Oregon v. Co., Power Cal.2d 725 [140 California Skelly 798]; Cowell, v. Cal.App. ; Stepp P. [173 609] Williams, v. Cal.App. 661]; P. Mt. Power Shasta Corp. McArthur, 109 Cal.App. ; 549] Califor Pastoral & Enterprise A. Co. v. Co., C. & L. 127 F. 741. fornia forthrightly cases This court has never stated above expressions are are in some decisions to the overruled. There harmony effect that the doctrine of those cases is out of concept amendment, 1928 constitutional embraced interpretation resulting but the confusion from such of this probably amendment was members of envisioned participated this court who in the decisions in which this was interpreted. interpretation, amendment Under this one nonriparian acquire who diverts water for a use can never him beneficially water diverted and used against riparian owner who does not see fit share to use his of the water of a riparian. stream to which his land is This many means that of the most valuable water in this acquired. state could not now be example, For A diverts water from a stream for nonriparian prescrip use for the period. During period tive flowing all this past there is water riparian the lands of the owners downstream who are not cultivating land, their and, therefore, present have no need fully for water. But after developed A has nonriparian his land the use of water from prescriptive the stream for the period, riparian the downstream develop owners decide to their lands and need the water. Under the doctrine of the Peabody Gin Chow cases, the riparian downstream owners are entitled to all of they the water if need it to the exclu sion detriment of nonriparian the owner who has made a beneficial use of it for prescriptive the period. This was not the law before these decisions. Haggin

I am of Lux supra, convinced that doctrine did not wise for policy development establish a had I a California, water resources of been member of decided, joined I this court when that case was would have However, many salutary prin- with the there were dissenters. ciples engrafted doctrine, of water which were onto that law which established, prin- under valuable were and those ciples away by swept pen should not be a stroke of the be- majority cause the of this court that the 1928 consti- believe right tutional amendment riparian has modified the doctrine by limiting right reasonably to quantity of water nec- essary riparian for the beneficial use of the owner. This modi- operate nonriparian fication should not prevent to a owner acquiring from right the same character he have could acquired superseded under the position, doctrine. I take the therefore, prescriptive right may acquired that a be so- “surplus called contrary holding or excess water” and that a to the recognize

fails to prin- fundamental and well settled ciples of water law which abrogated by were not constitutional amendment. overlying analogous

In case we have owners who are this owners, many riparian appro- and we have different using priators. persons These different have all been great many years—far a purposes water for their various years legally necessary acquire prescrip- more than is a against anyone. majority say they right tive The have been using adversely acquired other, prescriptive to each and have rights against with which each other. This is statement may gain I prescriptive am not in accord. order that one prescribed period there must be an adverse user for the years against under such person of five circumstances that the knowledge, use is adverse actual whom the has either or con- majority charge appropriators structive. The the various knowledge because with such level the wells was was, lowered. This is absurd. The level these wells due very subject change. nature supply, source of severity duration and season, length the winter humidity or lack season, of humid- intensity rainy evaporation evaporation ity lack of with its attendant supply of water available on all have an effect would prescriptive the water for the user of the wells. The mere prescriptive title; to confer period of itself is not sufficient ripen never into it can adverse. Otherwise the use must be long continued. And be- title, matter how prescriptive no be rule, in the sense of this it must can adverse fore a use party against whom it is inyasjon rights action; grounds him to afford set of such character as up, exposed an been claimant has is, the fact that the that it is bring, that neglected to opposite party has action which the grant in favor ground presuming a is seized on as the theory being enjoyment. The long possession continued have been sub- things would not that this adverse state of general principle A grant. if had mitted to there not been a stream applied that a use of the water of which has been is although excessive, proprietor, or lake common regarded ripen prescriptive into a adverse, to be as so as to right, long continued, long however so as it is the common injured use, long and so as are not other common owners thereby making prevented or or excluded from such use as right (56 Waters, belong Am.Jur., common to them. pp. 766-768.) overlying appropria- this case we have both owners and using water,

ted and apparently any all the water of them had had need for. Yet we are asked to believe that each every has, one of them way, gained in some a prescriptive right against every each and one of others because water level in appears the wells has been lowered. It from report of the Water underground Commission that supply greater has been withdrawn to a extent than is con- sistent with water appears conservation measures. It to me only that question priority involved is that of in time of appropriation. respect With to appropriators, provides the Civil Code prior

one prior time is in right. (§1414.) This rule seems agreed upon by to be the text great writers and a number of general cases. To state the rule affirmatively, appropriator entitled, of water is against subsequent all claimants, to the exclusive use of the water to the extent of his appropriation, without diminution or quantity material qual- alteration in ity. The prior residue after a appropriation may appro- priated by others out of the water of stream, the same there if is no prior with the appropriation. When a interference appropriator senior does not need all or portion some junior water, appropriator may, at such times, use such waters, unused although appropri- the senior ators, fully when exercised, consume the flow. entire very prior appropriation of the doctrine of It essence claiming by appropriation, persons as between time; words, he has the best who is first other prior appropriator appropri- is entitled to it to the extent any subsequent

ated to the appropriator exclusion of for the any same or enjoyed other use. But where both can be without impairment interference with or material of each other, enjoyment (56 Am.Jur., Waters, of both is allowed. pp. 758-9; Rights Wiel, Water in the Western States, p. seq.; Light et Wishon v. Co., Globe & Power 158 Cal. 137 ; Lindsay-Strathmore Tulare Irr. Dist. v. Irr. [110 290] Dist., 3 Cal.2d 489 P.2d ; 4,105 United States v. [45 1014] Acres Land, F.Supp. 279; 1044; Farnham, A.L.R. Waters and Rights, p. 2089; City Bay Water Lodi v. East Utility Mun. Dist., 7 ; Cal.2d 316 P.2d Larsen v. [60 439] Apollonio, 5 Cal.2d 440 196]; Meridian, P.2d Ltd. v. San [55 Francisco, 13 Cal.2d 424 105].) P.2d 91 P.2d As a problem, majority solution to opinion affirms doing trial court and in appropriators, so holds that the including appellant, among shall have allocated them the water shortage. This is to be proportionate done reduc- tion of the amount each appropriator has heretofore been pumping. majority The authority cite no proposi- for this tion. It is not, submitted that this is and should not be the law. In times of natural or other deficiency, also, unless other- provided wise by statute, prior appropriator may still claim his amount; full the loss must appro- fall on the later priators. (Wiel, Rights, supra, Water 311, and p. cases cited therein.) naturally This prior follows from the rule that prior in time is in this right, and rule is found in section of the Civil Code. Bay Utility City Dist., Lodi v. East Mun. 7 Cal.2d 439], city prior this court said: “The is a

appropriator compelled any and as cannot be such to incur expense subsequent in material order accommodate the Lindsay-Strathmore (Tulare Irr. Dist. v. appropriator. Irr. Dist., p. 574.) Although prior supra, appropriator may changes required to make minor in appro- its method of in render priation subsequent order to available water for major appropriators, compelled changes it cannot be to make (Peabody City expense. Vallejo, or to incur substantial 376).” supra, p. [Emphasis It was also said at added.] page 339, “Under such circumstances the 1928 constitutional^ amendment, applied cited, this court in the eases com- court, issuing pels entailing the trial before a decree such water, physical waste of to ascertain whether there exists a problem presented waste, solution of the that will avoid the unreasonably adversely and that will at the same time not prior appropriator’s property right.” vested [Em- affect phasis added.] majority court, holding in prior ap- of this that the rights proportionately propriator’s should be diminished subsequent appropriators, is, doing, interfering those of so property right, squarely with a vested and comes within the police power on the of the state as set forth in the limitation Fourteenth Amendment Constitution of the United subsequent charged appropriators States. The are with knowl- edge rights acquired prior the water at a time to the acquired, time they, their were and it is rather than time, subject those who were first in whose should be police power exercise the interests of the public in water conservation.

It is difficult prescriptive rights to see how can be said to gained by have been subsequent appropriators against prior appropriators without a determination of the extent of such rights. It operations seems the scattered conducted respondents should lumped together not have been to consti- tute prescriptive one right, but that there should been have of prescriptive determination each right, if any, that re- spondent acquired against had appellant. Appellant by sought, its demurrer to the complaint, to have the court require below respondent plead quantities the exact locations of water which it claimed. Its demurrer was sought overruled. It thing to ascertain the by same a demand particulars. for a bill of The demand was denied. right

The acquired by to water prescription only extends quantity to the actually taken at the right time the matured and does not taking include the anof additional quantity in (Burris the future. People’s v. Co., Ditch 104 248, Cal. 252 ; P. North Fork Water Co. v. Edwards, [37 121 662, 922] Cal. 665 ; P. Southern Wilshire, Cal. Inv. Co. v. [54 144 69] Cal. 68, 767]; 72 P. Wutchumna Water v. Ragle, Co. 148 [77 Cal. 759, 765 P. ; Finmand, Pabst v. 190 124, [84 Cal. 162] 132 ; P. San Bernardino v. Riverside, [211 186 7, 11] Cal. 25 ; P. Lindsay-Strathmore Tulare Irr. Dist. v. [198 784] Irr. Dist., 3 Cal.2d 489 972, ; P.2d Bertsch, Elliott [45 v. 1014] Cal.App.2d 59 543, 332].) 547 [139 majority opinion states that the trial court concluded “by prescription” “present owned its party that each unad ’ ’ is, amount which it justed right, actually had been that say result is to pumping. may acquire To reach this one merely by right As I prescriptive using water. have 950 adverse, and the previously, the use must be

pointed out must right gained have knowl persons against whom the (City Diego v. edge, actual or constructive. San either Co., Ad Cuyamaca P. Water Cal. 475].) [287 usufructuary use water involves the invasion of the verse Appro supply common to both. another a water only by inter priative invaded prescriptive be resulting ference another in actual diminution of Rond right. (Faulkner amount of water covered such v. ini, ; Cal. P. E. Clemens Horst Co. 883] Co., Tarr Min. Cal. 492].) Conceding neces- supply that a restriction the water sary, assuming argument only, that purpose iand re- appropriation applied, the rules as to should not be upon ap- striction should have been based the elevations at pellant’s limiting specific wells ráther number of than it to a per year regardless acre feet the status of the water tables. Geology Tolman, F. Professor of Economic C. Professor authority leading ground University, on at Stanford says: “It Water” must not water, in his work “Ground lowering table is a considerable concluded that a sur- supply. to the Just as or is detrimental serious must be drawn down in order catch face reservoir (water subsurface-reservoir flow, so the level preserve flood sufficiently loss table) prevent lowered effluent must be seepage in the area effluent increases seepage. A decrease area) seepage (absorptive turn the area of influent recharge. ground-water depleted A increases rate of dry cycle of dry years end of season or reservoir at the necessary salvaged in the wet following if water is to be cycle. legal controversies an unreasonable view season or regard necessity in the of main- past has been taken taining ” (P. 469.) water table at the ‘natural level.’ “Many page underground 487: are And at reservoirs large they carry great quantities have capacity so over only dry from following of water a wet season to the not period dry a wet period years from of to a season but also of years. However, fully necessary it to utilize these reservoirs enough water of them make room pump to out to for all the during the seasons and the during periods inflow wettest of heavy precipitation. years This was illus- successive well by underground trated reservoirs of some Southern tables, heavy California, pumping whose under for they irrigation, went a little lower each summer than down previous winter, appeared risen in until it had the that ex- inevitably depletion compel irriga- cessive must reduction in gation. Then a period recharge came of wet winters when occurred a remarkable extent and the water levels rose ’’ beyond expectations. all language by City Bay used this court in Lodi v. East Utility Dist.,

Mun. appli- Cal.2d 439] by cable to appellants: opinion the contention made “In our the cause should be sent back to permit the trial court to it to levels, take evidence plaintiff’s may as to to which wells danger be lowered supply. city’s without substantial to the fixing danger adequate level safety this factor city favor of the should be necessity allowed. There is no for retrial the case on the issues of fact as to which the court has made extensive findings, as above noted. The facts may as thus found be considered in connection with the further evidence danger taken to fix the level of Lodi’s wells. The decree should then be provide duty reframed to that the rests upon the District to maintain the plaintiff’s levels of the wells danger above the level so fixed court; trial event the levels of the danger wells reach the points, duty upon be cast supply District city, water to the or to raise the levels of the danger wells above mark; if District does not comply with this order within a reason- time, injunction able then the already framed, upon decree or proper showing as modified the court under its continu- ing jurisdiction, go shall into effect. The trial court should by its judgment preserve continuing jurisdiction, its change modify its may require. orders and decree as occasion adequately requirements “Such a decree would meet the by preventing of the Constitution an unreasonable waste of and at the ade- the waters stream same time would quately protect prior rights City Lodi. It would city supply, same, a continuance of water afford its practical purposes, all if re- natural conditions were go level, If quired persist. danger its wells down to the immediately obtain water from at it would the District injunction expense, or the decree means which latter’s underground artificially levels will be maintained would go into It would District effect." accord to the duty place upon working out a solution physical unhampered by rigid which, condi- changing decree being constantly tions and new methods conservation de- veloped, actually operate inequitably might but en- duty District the courage place upon the waste. It would underground levels, and expense maintain the water at its directly supply water so, if the or fails to District fails to do compulsory re- City Lodi, provides to the the decree a decree Such as to maintain natural conditions. leases so maintain the say to the District: You should would city, and damage to the levels to cause substantial so not needs, any way your or if you may best do this suited you supplement you do not maintain those levels should deficiency by your city’s caused supply to the extent of the furnishing by means and operations by the of water artificial you things you If your expense. at do not do these are sub- ject injunction compelling to an releases to maintain natural undoubtedly mul- prevent conditions. Such a decree would a appro- It fix tiplicity prior of suits. would of the subsequent priator and would determine of the the effect appropriator’s diversions. no immediate Since there is dan- ger prior appropriator, danger fix to the it would levels prior appropriator’s wells and when that level is reached, upon showing require effect, to that it would subsequent appropriator delivery either direct by compulsory supply prior appropriator’s releases to needs. . would full permit

“Such decree use of all available waters, guarantee prior appropriator protection, to the full unduly restraining would do without operations this subsequent appropriator.” accomplish

To requiring appellant the restriction maintain a equitable certain level in its wells is a far more proposed by majority. solution than that In the first years instance, during may, action, wet he court pump without as much for; dry water as he has need years, he will know exactly where he go beyond stands that he not danger place line. To the restriction on the water-level basis money will time, expense. save seeks to answer respondent appellant’s contention as to argument basis of restriction with the water-level that the responsive pleadings “in decree was that each claimed a certain amount of water and not that certain water levels should be maintained. As the Western Unit herein considered reservoir, underground abstraction of an acre foot party one is to that of water extent detrimental every party other the Unit.” Of course the parties appellant claimed a certain amount of water; claimed, support claim, that, introduced evidence to in ac- law, cordance with the prior appropriator prior right, had a certainly but the decree is claim. consistent with that In summary, majority opinion seems to hold that “sur plus water,” defining may or excess it, appropri without ated, prescriptive right may but no acquired thereto; be that subsequent a appropriator may acquire prescriptive a against prior appropriator a percolating though water even prior appropriator the has continued to divert and use his full appropriative right and deprived any has never been portion of quantity the appropriated by of water him; so that an overlying may acquire owner prescriptive right a against another overlying using owner who is water from underground same though basin even each has diverted and used the full quantity of put water he could ato beneficial use; that an overlying may acquire owner right by a prescrip against tion prior subsequent or appropriator and that may latter acquire such right against the former even though each has diverted and quantity used the full of water that he could reasonably put to beneficial Obviously, use. holding effect of place upon equal this is to an footing users who given have diverted and quantity used a of water underground from an basin for a period continuous of five years regardless origin period or during of time which the diversions were holding made. This does not support find single in a authority any or any decision of court common jurisdiction law since court published. decisions have been On the hand, other contrary every it is decision which ever by has been rendered every the courts of this state and jurisdiction other which has subject. considered the Viewed in relation to practical aspect of the case and physi cal situation which every must exist in character, case of this the effect of this holding every is to overrule which decision has by been rendered this court in cases where similar factual situations existed. We that, must assume in a state of nature, underground basin here involved full of water in years precipitation runoff; normal and is, the water up top would rim which confined it to the basin area. If all users from such a basin overlying were owners, land then under the settled rules of law as announced court, equal this of such users would be and correlative, prior superior right and no user would have (San Riverside, to the other. Bernardino v. 186 Cal. 7 P. [198 784]; Maclay, Burr 154 428, ; v. Cal. 439 P. Katz [98 260] 954 99 663, 766, P. Am.St. 116 P. 74 Walkinshaw, 141 Cal.

v. [70 comes into appropriator 236].) Then Rep. 35, 64 L.R.A. and diverts one who “appropriator,” I mean picture. Obviously, the same rule nonoverlying land. water on uses his overlying owner because him to an apply does not as surplus there is clearly latter, unless use is adverse to the complex a most presents this basin, in the or excess water Its solution may years to solve. problem—one which it take the area many factors, topography, depends upon such supply, basin, quantity and source depth overlying owners, if of use outflow, any, the character factors which crops raised, and various other type held, court has immediately apparent. This not be made subse any appropriation my opinion correctly, overlying owner adverse in an quent vesting of title an immediate cause overlying gives rise to to such owner Riverside, 186 (San Bernardino v. of action on his behalf 154 Maclay Co., Rancho Water ; Burr Cal. 7 P. v. [198 784] Walkinshaw, 141 Cal. 116 428, P. Katz ; Cal. 439 [98 260] ; L.R.A. Am.St.Rep. 35, 64 766, P. P. 236] Bay Co., 157 Cal. Miller v. Cities Water Hudson, Cal. 772]; McClintock v. L.R.A.N.S. P. Co., 142 Cal. 437 ; v. etc. P. Cohen LaCanada [76 [74 849] 584 Barbara, 144 Cal. 47]; etc. Montecito Co. v. Santa Verdugo, 152 1113]; Verdugo P. Water Co. v. Canon [77 P. Dailey, 655 156 Cal. 617 1021]; Cal. P. Hudson v. [105 [93 right 748]), necessarily ripen into because such use will years. This against overlying in five prescription such owner always has not the rule appropriators, is true as between “As Code, been, as declared section 1414 of Civil right.” first in appropriators, between the one first in time is P. (Wishon Co., Light Power 158 Cal. v. Globe & [110 ; P. ; Riverside, Bernardino 186 Cal. 7 San [198 784] 290] Meridian, P.2d Francisco, Ltd. v. 13 Cal.2d San [90 Cal.App. ; Wood, 91 P.2d Sherwood v. 105] Cal.App.2d 798 491]; Valley Co., Jones v. Pleasant Canal 289].) only cited Not is the above section all completely abrogated nullified, but Civil Code majority by above cited cases are, effect, overruled decision this case. overlying say majority is decision effect with underground basin filled on an situated land owners against of action “Ton have no cause waters, that:

percolating you unless non-overlying use appropriator an surplus taking water, can he is than excess or show that other you but if action such diver- do commence an to restrain sion, appropriator prescriptive right may such an obtain a against you taking if it should determined he is later be you overlying water to which and other land owners Anyone slightest knowledge entitled.” of situ- who has the ations place of this character should realize that this would impossible upon overlying burden land owner and greatly jeopardize rights. difficulty his His would be multi- plied if taking there were a of overlying number owners water from same Obviously, overlying basin. land owner should have an against immediate cause of action appropriator, and the burden should be on to show the latter taking only that he is surplus or excess water or cease his subsequent diversion. far as appropriators concerned, So are prior appropriator rely right upon should have the section 1414 of the Civil Code above cited authorities which should prior vouchsafe to him a superior upon based prior his appropriation. Since the decision of court, the trial which affirmed

majority decision of this court, completely harmony out of every statute, principle and rule of law has here- which tofore been enacted and promulgated, I would reverse judgment and remand the cause for a new trial in accordance with what should be the settled law this state.

Appellant’s petition rehearing for a denied June J., J., rehearing. Carter, Schauer, 1949. voted for a

Case Details

Case Name: City of Pasadena v. City of Alhambra

Court Name: California Supreme Court

Date Published: Jun 3, 1949

Citation: 207 P.2d 17

Docket Number: L. A. No. 19610 In Bank

Court Abbreviation: Cal.