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NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
Frederic A. Fudacz, State Bar No. 50546
Henry S. Weinstock, State Bar No. 89765
Alfred E. Smith, State Bar No. 186257
445 South Figueroa Street, 31st Floor
Los Angeles, California 90071
Telephone: (213) 612-7800
Facsimile: (213) 612-7801
GOVT. AGENCY – NO FILING
FEE (GOVT. CODE § 6103)
Attorneys for Defendants City of Arroyo Grande,
City of Grover Beach, City of Pismo Beach,
Oceano Community Services District
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA CLARA
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SANTA MARIA VALLEY WATER
CONSERVATION DISTRICT, a public
entity,
Plaintiff,
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v.
CITY OF SANTA MARIA, et al.,
Defendants.
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AND ALL RELATED ACTIONS.
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SANTA MARIA GROUNDWATER LITIGATION,
LEAD CASE No. CV 770214 (Consolidated with
CV 784900, 784921, 784926, 785509, 785511,
785515, 785522, 785936, 786971, 787150, 787151,
787152, 990738, 990739)
NORTHERN CITIES’ REPLY IN SUPPORT OF
THEIR DEMURRER TO LANDOWNER
GROUP COMPLAINTS
Hearing Date: May 12, 2000
Time: 9:30 a.m.
Dept.: 17 – Judge Conrad L. Rushing
Trial Date: October 10, 2000
INTRODUCTION.
The Landowners’ opposition begins by misstating the Northern Cities’ position. The
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Northern Cities do not contend that the water in the Basin is a “thing, capable of being owned.”
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(Opposition, page 1, line 25.) The Northern Cities contend that parties extracting water from the Basin
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have a right to use, not own, water in the Basin and only in amounts reasonably needed for beneficial
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use. (Demurrer, pg. 8, lines 12-15). Moreover, this Landowner argument is irrelevant to the demurrer.
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The Landowners must first adequately describe the disputed property to which they seek to quiet title—
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rights to use the water of a groundwater Basin that they refuse to identify.
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The Landowners mischaracterized the property at issue by only describing their surface
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parcels. The court in Burr v. Maclay Rancho Water Co. (1911) 160 Cal. 268, stated that groundwater
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should be considered a common supply which “gives correlative rights in the common supply.” (Id.
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at 273; emphasis added). Thus, the property rights must be defined in relation to the Basin, because the
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Basin is the common supply in which users have shared rights to the use thereof.
Further, the Landowners’ opposition concedes that the rights must be defined in relation
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to the Basin. The Landowners state that “What is capable of being owned is a right to use some part of
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the annual supply of the Basin.” (Opposition, pg. 2, lines 6-7; emphasis added). Tulare Irrigation
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District v. Lindsay-Strathmore Irrigation Dist. (1935) 3 Cal.2d 489, demonstrates that all uses, both
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appropriative and overlying, must be considered to determine to what extent parties may use the
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common supply of a groundwater Basin. Without a description of the Basin, it is impossible for
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defendants and unnamed parties to know whether their water rights are being challenged by these
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plaintiffs. Without joining all users of the Basin’s water, the Court cannot adjudicate all adverse claims.
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The Northern Cities are not demurring to all Landowner claims or trying to prevent the
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Landowners from getting a declaration of their rights to their undefined Basin’s common supply.
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Instead, the Northern Cities contend that quiet title claims affect unnamed parties and therefore have
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special pleading, joinder, and notice requirements that the Landowners have not followed.
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II.
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THE LANDOWNERS FAILED TO DESCRIBE THE PROPERTY.
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Plaintiffs Fail To Address Their Statutory Lis Pendens Requirement.
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The Landowners’ opposition ignores the lis pendens filing requirement under the quiet
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title statutes. The Landowners failed to comply with this statutory requirement to notify persons with
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adverse claims. The demurrer should accordingly be sustained on this ground.
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B.
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Merely Identifying Plaintiffs’ Overlying Parcels Fails to Describe “the Property.”
The Landowners acknowledge their statutory requirement to describe the property which
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is the “subject” of this quiet title action. C.C.P. § 761.020. Yet, the Landowners contend the demurrer
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should not be sustained because there will be a trial on the Basin boundaries. (Opposition, pg. 2, line
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28). But before there can be a trial, there must be a proper pleading. Further, the function of a demurrer
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is to determine issues of law, not fact. C.C.P. § 430.010; Serrano v. Priest (1971) 5 Cal.3d 584, 591.
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Next, the Landowners argue that they properly described “the property” by identifying
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only their own surface parcels without describing the groundwater Basin at issue. (Opposition, pg. 2,
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lines 20-21.) The Landowners provided no case law supporting this unprecedented attempt to quiet title.
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Rather, the Landowners rely on California Water Service Co. v. Edward Sidebotham and Son (1964)
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224 Cal.App.2d 715, for the proposition that overlying water rights are “part and parcel” of the land.
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(Opposition, pg. 4, lines 9-12).
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However, Sidebotham stated that rights to underground waters are correlative, and
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subject to reasonable and beneficial use limitations. The court further stated that a trial court, under the
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reasonable and beneficial use limitations of the California Constitution, has a duty to adopt a physical
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solution that considers all uses in the basin. The court stated: “the public interest requires that there be
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the greatest number of beneficial users which the supply can yield.” (Id. at 731.) Rights to groundwater
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are not defined solely in terms of overlying parcels. All uses and the reasonableness of such uses must
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be considered.
The Landowners’ argument relies on archaic, obsolete and incomplete legal arguments.
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The British common law ruled enunciated in Action v. Blundel (1843) 122 Mees & W. 324, where
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landowners were deemed to own everything lying beneath their land, was rejected in Katz v.
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Walkinshaw (1902) 141 Cal. 116. The court in Katz made clear that overlying rights are not absolute.
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Rather, the right is to use a correlative share of the Basin’s common supply for reasonable use on the
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overlying property. (Id.) As stated in Burr v. Maclay Rancho Water Co. (1911) 160 Cal. 268,
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groundwater is a common supply which “gives correlative rights in the common supply.” (Id. at 273;
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emphasis added). Even the Landowners acknowledge that “What is capable of being owned is a right to
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use some part of the annual supply of the Basin.” (Opposition, pg. 2, lines 6-7; emphasis added).
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Appropriative rights are also property rights, even though not defined in relation to the
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overlying parcel. Scott-Free River Expeditions, Inc. v. County of El Dorado (1988) 263 Cal.App.3d
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896, stated: “Water is unquestionably a species of real property and the right to use such water, whether
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that right be riparian, appropriative, or any other such right, is a valuable property right. . .” (Id. at
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804; emphasis added). Fullerton v. State Water Resources Control Board (1979) 90 Cal.App.3d 590,
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598 (An appropriative water right is a real property interest). Miller and Lux, Inc. v. Bank of America
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(1963) 212 Cal.App.2d 719, 726 (appropriative water rights are property rights recognized by law.)
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Since the Landowners are attempting to quiet title to property rights in the Basin, they
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must describe the Basin in which the property rights develop. Plaintiffs’ refusal to do so prevents all
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water rights holders from knowing whether they have adverse claims in this litigation. In fact, the
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parties to the litigation, such as these defendant cities, cannot even determine if they are drawing water
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from the Basin at issue in these amorphous claims.
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Defining the property in relation to the entire Basin is the only practical and logical
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approach. If enough water is drawn from other portions of the Basin, there would be no water left for
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the Landowners to draw from their property. Thus, the only way to determine competing claims is to
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analyze all water rights in relation to the common supply of the Basin.
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III.
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THE LANDOWNERS FAIL TO PROVIDE FOR A COMPLETE AND FINAL
DETERMINATION OF ADVERSE CLAIMS.
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Plaintiffs Fail To Name Other Overlying Landowners.
C.C.P. § 762.020 requires that plaintiffs in a quiet title action sue all persons having
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adverse claims to the rights claimed by the plaintiff. The Landowners incorrectly assert that overlying
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landowners are not adverse to one another and that a plaintiff in a quiet title action can “pick and
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choose” his enemies. (Opposition, pg. 4, line 19). But § 762.020 does not allow a quiet title plaintiff to
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ignore parties with adverse water rights claims. The Landowners also ignore Tulare Irrigation District
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v. Lindsay-Strathmore Irrigation Dist. (1935) 3 Cal.2d 489, which holds that a determination of rights to
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groundwater in a Basin must determine the reasonableness of all uses, including overlying uses, in the
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Basin. Tulare stated, “It is now necessary for the trial court to determine whether such owners,
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considering all the needs of those in the particular water field, are putting the waters to any reasonable
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beneficial uses. . .If the riparian is putting the water to any reasonable beneficial uses, it is now
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necessary for the trial court to find expressly the quantity so required and so used. (Id. at 524-525;
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emphasis added). Under Tulare, the court must consider the reasonableness of overlying uses, and find
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expressly the quantity of water required by each overlying user.
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Further, in conditions of overdraft, as between overlying landowners, each must take
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proportionate reductions in uses of water caused by the useage of the others. (Id.) Moreover, since
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there are no alleged subsurface barriers below the boundary lines that could create separate storage units
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for each Plaintiff’s property, the Landowners’ claim that they own all groundwater storage space renders
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all parties adverse who have stored or may store water anywhere in the Basin.
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The Landowners cite cases standing for the proposition that quiet title actions have been
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used to resolve conflicting claims between a limited number of parties. (Opposition, pg. 5, lines 17-26).
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But the Northern Cities argued that the Landowners’ Complaint is defective by failing to seek a
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determination of all claims to the use of groundwater in the Basin, which would subject defendants to a
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multiplicity of suits. (Demurrer, pg. 7, lines 15-19). The Landowners have failed to cite a single quiet
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title case omitting competing claims to the property.
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In addition, the Landowners mischaracterize prior demurrers filed in this action. The
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Landowners assert, without any proof, that the court ruled that appropriators are not necessary parties in
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this action. However, prior demurrers did not raise this issue. Further, prior demurrers did not discuss
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the need to join other overlying landowners in the action.
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The Landowners’ Arguments About Water Priorities Are Irrelevant, Obsolete, And
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Wrong.
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The Landowners argue that their rights to water in the Basin are superior to those of all
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water purveyors, whose rights are limited to prescriptive rights. (Opposition, pg. 3, lines 12-13; pg. 4,
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lines 24-25 ). Despite the irrelevance of this argument to the demurrer, Landowners devote much of
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their brief to it, so the Northern Cities will briefly address this issue. The Landowners assertion that
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overlying rights are superior to appropriative rights is archaic and oversimplifed. The court in Katz v.
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Walkinshaw, supra, 141 Cal. 116, clearly held that Landowners no longer own all water beneath their
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properties. There are various limitations on overlying uses. (Id.) Further, non-overlying uses may be
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superior to overlying rights under certain circumstances such as prescription, developed or salvaged
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water, and other circumstances. Los Angeles v. San Fernando (1975) 14 Cal.3d 199, 255-264; Los
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Angeles v. Glendale (1943) 23 Cal.2d 68, 76-78; Pasadena v. Alhambra (1949) 33 Cal.2d 908.
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By way of example, a significant portion of water used by defendants stems from
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salvaged and imported water. A party who saves water from loss has a superior right to the return flows
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of the water imported, developed, or salvaged. City of Los Angeles v. San Fernando, supra, 14 Cal.3d at
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255-263; City of Los Angeles v. Glendale, supra, 23 Cal.2d at 76-78. The Northern Cities have
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expended millions of dollars increasing water supplies through their participation in the construction and
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operation of the Lopez Reservoir. The Northern Cities have made water available for use which would
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otherwise be lost to the ocean. If the Northern Cities are within the Landowners’ undefined Basin, they
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have a superior priority under the salvaged water doctrine.
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IV.
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THE LANDOWNERS CANNOT OBTAIN A JUDGMENT QUIETING TITLE AS TO
THE FUTURE.
The Landowners state they are not seeking a judgment “quieting title to future rights.”
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(Opposition, pg. 7, line 3). Yet, they seek to be “protected from any future invasion” by municipal
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water purveyors in this action. (Opposition, pg. 7, line 5). Such an argument is internally inconsistent.
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Moreover, it is inconsistent with C.C.P. § 761.020(b), which requires that the court
determine rights as of the date the Complaint was filed or an earlier date. In the future, the quantity and
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reasonableness of the Landowners’ uses may change, certain Landowners may move out of the
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jurisdiction, or purveyors may obtain prescriptive or other rights in addition to those already acquired.
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The court cannot see into the future and enter an order protecting the Landowners from any “future
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invasion.” The facts necessary to make such a determination are presently unknowable.
In addition, the Landowners improperly characterize the Northern Cities’ demurrer as a
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demurrer to the Prayer for Relief. The Prayer for Relief is a culmination of the pleading’s attempt to
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quiet title to future rights. In fact, the Landowners’ opposition admits that they seek to quiet title to bar
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any “future invasion” and thereby seek a determination of future rights. Alternatively, if the Complaint
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does not seek relief as to the future, the Northern Cities have moved the court to strike the improper
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language from the Prayer For Relief. (Demurrer, pg. 12, line 28).
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V.
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THE LANDOWNERS’ FOURTH AND FIFTH CAUSES OF ACTION FOR
OWNERSHIP OF GROUNDWATER STORAGE SPACE SHOULD BE DISMISSED.
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In a separate opposition brief, the Landowners oppose the demurrer to the fourth and fifth
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causes of action for ownership re groundwater storage space. To avoid repetition, the Northern Cities
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incorporate the County’s reply brief.
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VI.
THE NORTHERN CITIES’ DEMURRER ATTACKS PLEADING DEFECTS.
While arguing archaic legal theories, i.e. a “property-rights based and hierarchical water
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rights law,” the Landowners mischaracterize the Northern Cities’ demurrer to their declaratory relief
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claim as an attack on the merits. (Opposition, pg. 8, lines 7-10). The Landowners urge this court to let
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their declaratory relief claims stand because the standards for properly pleading a declaratory relief
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claim are “low.” But the Landowners, particularly in quiet title litigation, cannot avoid their statutory
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pleading requirements.
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With the exception of the Fifth Cause of Action for Declaratory Relief to Ownership of
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Groundwater Storage Space, the Northern Cities’ demurrer attacks only the Landowners’ quiet title
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claims, whose statutory pleading standards are high. But even with respect to the declaratory relief
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claim, the mere existence of a controversy is not sufficient. Where there is a controversy, but the facts
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supporting that controversy, even if true, fail to state a cause of action upon which relief can be granted,
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a demurrer is proper. (A. Hamburger & Sons, Inc. v. Kice (1933) 129 Cal.App. 68, 70; Moss v. Moss
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(1942) 20 Cal.2d 640, 642; Rappaport v. Forer (1937) 20 Cal.App.2d 271, 276). For reasons stated in
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the County of San Luis Obispo’s demurrer and reply re the Landowner’s Fifth Cause of Action, the
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Landowners fail to state a cause of action in declaratory relief.
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VII.
CONCLUSION.
For the foregoing reasons, the Northern Cities’ demurrer to the first, fourth, and fifth
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causes of action of the Landowner Group complaints and cross-complaints should be sustained without
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leave to amend.
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DATED: May 5, 2000
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
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By: __________________________________________
Alfred E. Smith
Attorneys for Defendant Cities of Arroyo Grande, Pismo
Beach, Grover Beach and Oceano Community Services District
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