CALIFORNIA WATER RESOURCES
ASSIGNMENT 16
Introduction to the Law of Groundwater
The secret, changeable and unknowable character of underground
water in its operations is so diverse and uncertain that we cannot
well subject it to the regulations of the law, nor build upon it a
system of rules, as is done in the case of surface streams.
People v. Kramer, 423 P.2d 587, 591 (Mont. 1966).
Freedom in a commons brings ruin to all.
Garret Hardin, The Tragedy of the Commons (1968).
Reading:
Katz v. Walkinshaw
City of Pasadena v. City of Alhambra
Anne Schneider, Groundwater Rights in California
Notes:
1.
Groundwater may be found throughout the United States and is an important source of
water supply in all states. There are extensive reserves in the Great Plains, the valleys and high
deserts of eastern Oregon and Washington, and in California’s Central Valley. Many of these
groundwater reserves date back to the Cretaceous Period.
Groundwater exists in aquifers (sometimes called groundwater basins). Most aquifers are
composed of unconsolidated rock—gravel, sand, clay, and related deposits. In such cases, the
groundwater is present in the interstices of the sediment. Groundwater also may exist in the
pores of consolidated rock such as sandstone, limestone, and basalt. Geologists classify aquifers
in one of four ways: the strata beneath active watercourses, abandoned or buried valleys, plains,
and inter-mountain valleys.
2.
There are two types of aquifers: confined and unconfined.
Confined aquifers (also known as artesian aquifers) are increasingly rare. In an artesian
aquifer, the water pressure is greater than atmospheric pressure and water moves within the
aquifer by pressure differential. In a confined aquifer, there is no groundwater table. Natural
springs are the product of artesian aquifers.
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Unconfined aquifers (sometimes called non-artesian or free aquifers) are characterized by
a water table and water pressure that is insufficient to carry the water to the surface without
pumping. Water moves within an unconfined aquifer by gravity, and the water table rises and
falls based on changes in the volume of water within the aquifer. Most usable groundwater
exists in unconfined aquifers.
Aquifers may be layered. This occurs when one aquifer is separated hydrologically from
another aquifer above or below it by a layer of impermeable rock or clay. Layered aquifers are
sometimes referred to as “shallow groundwater” and “deep groundwater.”
3.
Groundwater pumping causes a “cone of depression” in the area immediately
surrounding the well and pumping in excess of the recharge into the aquifer will cause the
groundwater table to lower over time. The lowering of the groundwater table may have several
adverse consequences. These include: interference with the wells of other groundwater users
(i.e., wells may run dry); increased pumping costs as wells must be deepened and more
electricity is required to pump water from greater depths; salt water intrusion into coastal
aquifers; loss of artesian springs and surface vegetation; groundwater pollution caused by salt
water intrusion or the reduction of the water available to dilute pollutants that are present in the
groundwater; and land subsidence, which may occur when aquifers from which water is removed
are compacted.
All of these problems are present in California. Salt water intrusion is an ever-present
concern along the coast, particularly in Southern California. Aquifers have compacted and the
level of the surface has subsided as much as sixty feet in the southern San Joaquin Valley and
Tulare Basin.
4.
In California, the law of groundwater applies only to “percolating waters.” The other two
forms of groundwater—the underflow of surface streams and underground streams—are
governed by surface water rights law. See California Water Code § 1200. As Arthur Littleworth
and Eric Garner have explained:
Definition of groundwater. California recognizes several legal classifications of
groundwater (depending on its occurrence in various geologic formations) which govern
the application of water rights laws. For legal purposes, underground waters are divided
into three categories: (1) the underflow of a surface stream; (2) a definite underground
stream; and (3) percolating waters. Since all underground water is generally presumed to
be percolating water, the burden of proof is on the party seeking to prove that the water is
underflow or a definite underground stream. Arroyo Ditch & Water Co. v. Baldwin
(1909) 155 Cal. 280, 284.
Underflow of a surface stream. The underflow of a surface stream consists of the
water in the soil, sand, and gravel in the bed of a stream in its natural state and essential
to its existence. City of Los Angeles v. Pomeroy (1899) 124 Cal. 597, 623-35. To
constitute underflow, the flow must be in a known and definite channel. Water Code §
1200. The underflow may include lateral extensions of the stream on each side of the
surface channel if its movement and location can be determined. Larsen v. Apollonio
(1936) 5 Cal. 2d 440, 444; Peabody, p. 375.
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Underground streams. Groundwater also includes an underground stream which
flows in a known and definite channel in a subterranean watercourse. Cave v. Tyler
(1905) 147 Cal. 454, 456; Water Code § 1200. A definite channel is defined as a
“contracted and bounded channel” and knowledge must exist as to the course of the
stream by “reasonable inference.” Proof of the existence of an underground stream is
shown through the direction of flow, confinement within the watercourse banks, and flow
within a defined channel. Pomeroy, pp. 633-34. The same water rights are applicable to
underground streams as surface water. Pomeroy, pp. 630, 632; Rank v. Krug (1950) 90
F. Supp. 773, 787; Water Code §§ 1200-1201; Prather v. Hoberg (1944) 24 Cal.2d 549,
557-62.
Percolating waters. All underground waters other than underflow or
underground streams are considered percolating waters. Vineland, pp. 494-95; Water
Code §§ 1200, 2500. Groundwater is presumed to be percolating. Arroyo Ditch & Water
Co. v. Baldwin (1909) 155 Cal. 280, 284. Percolating waters include water in
underground water basins and groundwaters that have escaped from streams. Montecito
Valley Water Co. v. Santa Barbara (1904) 144 Cal. 578, 584.
ARTHUR L. LITTLEWORTH & ERIC L. GARNER, CALIFORNIA WATER 47-49 ( SOLANO PRESS 1996).
5.
The statutory distinction between (a) percolating waters and (b) the underflow of surface
streams and subterranean streams dates back to section 42 of the Water Commission Act of
1913, which in turn was based on case law that made a similar distinction. See North Gualala
Water Co. v. State Water Resources Control Board, 39 Cal. App. 4th 1577, 1591-96; 43 Cal.
Rptr. 3d 821, 832-36 (1st Dist. 2006).
At the request of the State Water Resources Control Board, Professor Joseph L. Sax
analyzed the legislative history of section 42 and concluded that the Legislature intended to
empower the Water Commission (now the SWRCB) to regulate—through its surface water
permitting and licensing authority—the extraction of groundwater that is hydrologically
connected to a surface stream where there is a direct and significant relationship between
groundwater pumping and the flow of water in the stream. According to Professor Sax:
the Water Commission Act's history reveals the legislative purpose of the "subterranean stream" provision
was to protect the integrity of the permitting agency's jurisdiction over surface stream appropriations. The
means for achieving that goal was the prevention of unpermitted pumping of groundwater that
appreciably and directly affected surface stream flows. The authors of the Act essentially sought to close
a loophole that left the permitting agency powerless when a pumper took water from a subsurface location
and directly impacted the flow of a surface stream. At the same time, it is clear the legislature did not
intend to create permitting jurisdiction over all groundwater pumping that would in any way, or at any
time, affect surface streams. The statute undoubtedly meant to leave much tributary groundwater as part
of a separate legal regime outside the permit system being established. While the "subterranean stream"
language in the Water Commission Act was almost certainly generated by concern about pumping from
areas that were very proximate to the surface stream, such as what is called underflow or subflow, the
central concern was impact, not proximity. It should be kept in mind that modern-day high-powered
pumps were not extant at that time.
My conclusion is that the Assembly designed the legislation to create an impact test (impact of
pumping on surface stream flows), and to extend the Board's jurisdiction to pumping that has an
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appreciable and direct impact upon a surface stream. To be sure, any test of impact necessarily involves a
judgment about the boundaries of inclusion and exclusion. This is an unwelcome task imposed by any
regime that treats groundwater and surface water separately; although even in states where groundwater
and surface water management is fully integrated, judgments must be made about the point at which
pumping impacts on surface streams are sufficiently attenuated in time or impact that they should not be
considered. In any event, any such line drawing represents a policy judgment, not a technical one. Since
the groundwater and surface water within a watershed essentially constitute a continuum, any test
intended to separate one part of the groundwater from another inescapably requires a judgment that
reflects a purposive goal, rather than reflecting a technical line of demarcation that hydrogeologists or
other scientific experts utilize and for which there is a technically accepted definition.
Joseph L. Sax, We Don’t Do Groundwater: A Morsel of California History, 6 U. Denv. Water L.
Rev. 269, 304-05 (2003).
After commissioning his work, the Board rejected Professor Sax’s conclusions and
adheres to the traditional “hydrogeologic” distinction between percolating waters and subsurface
flowing water.
6.
The SWRCB has the burden of proving that groundwater is subsurface flow, rather than
percolating water. It has developed a four-part test for making this decision:
[F]or groundwater to be classified as a subterranean stream flowing through a known and
definite channel, the following physical conditions must exist: [¶] 1. A subsurface channel must
be present; [¶] 2. The channel must have a relatively impermeable bed and banks; [¶] 3. The
course of the channel must be known or capable of being determined by reasonable inference;
and [¶] 4. Groundwater must be flowing in the channel.
See North Gualala Water Co., 39 Cal. App. 4th at 1585, 43 Cal. Rptr. 3d at 827. For a detailed
summary of the process of identifying groundwater for purposes of defining the Board’s
permitting and licensing jurisdiction, see id. at 1596-1606, 43 Cal. Rptr. 3d at 836-44.
7.
On September 20, 2011, the SWRCB approved a final regulation that governs all
diversions of water from the Russian River for protection of grapes against frost from March 15
through May 15 each year. The Board adopted the regulation to protect spawning coho salmon,
which are an endangered species under both the federal and California Endangered Species Acts.
The high instantaneous demand for water for frost protection causes the flow of the river to fall
below the levels needed to support the fish and exacerbate the threats to the existence of the
species. All diversions of water for frost protection must be consistent with a “water demand
management program” approved by the Board.
This regulation is significant for a variety of reasons, not the least of which is the Board’s
decision to apply the restriction on diversions not just to surface water users but also to “the
pumping of hydraulically connected groundwater.” According to the Board, “groundwater
pumped within the Russian River watershed is considered hydraulically connected to the Russian
River stream system if that pumping contributes to a reduction in stream stage to any surface
stream in the Russian River watershed during any single frost event.” 23 Cal. Code Regs. §
862(a). The SWRCB also declared that the “diversion of water in violation of this section,
4
including the failure to implement the corrective actions included in any corrective action plan
developed by the governing body, is an unreasonable method of diversion and use and a
violation of Water Code section 100, and shall be subject to enforcement by the board.” Id. §
862(e).
Does the Board have authority under Article X, Section 2, Water Code §§ 100 and 275,
the public trust, or any other law to restrict the pumping of groundwater under these
circumstances?
8.
Californians use an average of about 15 million acre feet of groundwater each year as a
supplement to their surface water supplies. This use results in groundwater overdraft, however,
of approximately 1.3 million afa. “Overdraft means that the amount of water extracted from a
groundwater basin is beyond the ‘safe yield’ of the basin, which is typically equivalent to the
long-term recharge.” LITTLEWORTH & GARNER, supra, at 47. Despite this overdraft, most
groundwater use in California is not regulated. Indeed, there are few statutes that govern
groundwater extraction and use; and, in contrast with the law of surface water rights,
groundwater rights continue to be dominated by common law principles.
9.
According to the English and early American common law, the owners of land overlying
an aquifer had absolute rights to pump groundwater for use on their land. See Acton v. Blundell,
52 Eng. Rep. 1223 (1843). This rule had disastrous consequences in many jurisdictions, both
creating incentives to overuse groundwater and affording overlying landowners no legal right to
protect their common interests in maintaining a water table that could be reached at reasonable
pumping costs. The law of absolute ownership led to “tragedies of the commons” in many
aquifers around the United States.
As a consequence, all states have abolished the rule of absolute ownership, except for
Texas. See Friendswood Development Co. v. Smith-Southwest Industries, Inc., 576 S.W.2d 21
(Tex. 1978). Beginning in the late 19th Century, the eastern states adopted the doctrine of
reasonable use. Under this law, all owners of overlying land have the right to pump
groundwater, provided they do not cause “unreasonable” harm to other overlying landowners. In
most states, harm includes the unreasonable lowering of the groundwater table or artesian
pressure, mining of the aquifer, and land subsidence. Most reasonable use jurisdictions also limit
the use of groundwater to the overlying lands. See generally Restatement (Second) of Torts §§
850-858 (1979).
A large majority of the western states apply the law of prior appropriation to
groundwater. These states include Colorado, Idaho, Kansas, Montana, Nevada, New Mexico,
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. As with its surface law
counterpart, rights to groundwater are based on priority of use, and water may be exported and
used on lands removed from the aquifer in which the water originates. Most groundwater
disputes in the West involve claims by senior appropriators that a junior appropriator has
interfered with the senior’s right to pump at existing groundwater levels or artesian pressures.
See, e.g., Parker v. Wallentine, 650 P.2d 648 (Idaho 1982).
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10.
Not surprisingly, California has gone its own way. Four cases are vital to an
understanding of California groundwater rights law. We will read Katz v. Walkinshaw and City
of Pasadena v. City of Alhambra in this assignment. The California Supreme Court’s two most
recent groundwater cases, City of Los Angeles v. City of San Fernando (1975) and City of
Barstow v. Mojave Water Agency (2000) will be the subjects of the next two assignments.
11.
In Katz, the California Supreme Court rejected the absolute ownership rule and held that
groundwater is governed by the doctrine of correlative rights. This system parallels California’s
surface water laws. According to the Supreme Court, overlying landowners as a group have first
priority to the groundwater in the aquifer beneath their lands. Each overlying landowner has
correlative rights with all other overlying owners to a reasonable share of the “safe yield” of the
aquifer. Disputes among overlying landowners for the lowering of the groundwater table or
diminution in artesian pressure are governed by a standard of “reasonableness.” If there is a
surplus in the safe yield left over after the reasonable needs of all overlying landowners are
supplied, then non-overlying users may pump the surplus water for use on lands removed from
the aquifer. The rights inter se of non-overlying users are based on priority of appropriation.
12.
Katz also is consistent with the surface water rights cases we have studied in that it is an
overtly utilitarian decision. Chief Justice Shaw explained in detail why the doctrine of absolute
ownership would be unsuitable to California’s hydrologic and economic conditions. In so doing,
the Court rejected the defendant’s argument that, because the Legislature had adopted the
common law by statute in 1850, the judiciary was without power to modify the common law
doctrine of absolute ownership of groundwater. According to Chief Justice Shaw, this
contention “is founded upon a misconception of the extent to which the common law is adopted
by such statutory provisions, and a failure to observe some of the rules and principles of the
common law itself. . . . [S]uch portions of the law of England as are not adapted to our condition
form no part of the law of this state. This exception includes not only such laws as are
inconsistent with the spirit of our institutions, but such as are framed with special reference to the
physical condition of a country differing widely from our own. It is contrary to the spirit of the
common law itself to apply a rule founded on a particular reason to a case where that reason
utterly fails.”
Why was it appropriate for the California Supreme Court to reject the English (and
American) common law doctrine of absolute ownership of groundwater, but the Court was
constrained by the 1850 statute from rejecting the law of riparian rights in Lux v. Haggin?
Perhaps we will never know.
13.
A key concept in Katz is the “safe yield” of the aquifer. Safe yield not only defines the
aggregate quantity of groundwater that the overlying landowners may use each year; the safe
yield also limits the rights of non-overlying owners to appropriate water from aquifer. The
courts generally have defined safe yield as the long-term recharge of the aquifer. In other words,
over a fixed period of time, groundwater users may extract an aggregate amount of groundwater
equal to the quantity that will be returned to the aquifer from surface and subsurface recharge.
The California Department of Water Resources has adopted a more functional
characterization of safe yield, which it defines as the “maximum quantity of water that can be
6
continuously withdrawn from a groundwater basin without adverse effect.” CALIFORNIA
DEPARTMENT OF WATER RESOURCES, CALIFORNIA’S GROUNDWATER (BULLETIN 118-03), at 216.
The Department also defines overdraft, however, in a manner that mirrors the courts’ definition
of safe yield:
Overdraft is the condition of a groundwater basin in which the amount of water withdrawn by
pumping over the long term exceeds the amount of water that recharges the basin. Overdraft is
characterized by groundwater levels that decline over a period of years and never fully recover,
even in wet years. Overdraft can lead to increased extraction costs, land subsidence, water
quality degradation, and environmental impacts.
Id. at 29. Which definition is the more scientifically accurate and useful as a guide to sound
water resources management?
14.
In principle, no one may pump groundwater in excess of the safe yield of the aquifer.
Three regions of the state have been in overdraft for many years, however. These are the Central
Coast (214,000 afa average overdraft as of 1995), the San Joaquin Valley (239,000 afa average
overdraft), and the Tulare Basin (820,000 afa average overdraft). CALIFORNIA DEPARTMENT OF
WATER RESOURCES, CALIFORNIA WATER PLAN UPDATE (BULLETIN 160-98), Vol. 1, at 3-50.
Unfortunately, these overdraft data are the most recent that DWR has provided. In its
2003 update to its comprehensive report on groundwater use and management, the Department
explained that, although the 1995 estimates “are useful from a regional and statewide planning
perspective, the basin water budgets calculated for this update of Bulletin 118 clearly indicate
that information is insufficient in many basins to quantify overdraft that has occurred, project
future impacts on groundwater in storage, and effectively manage groundwater.” CALIFORNIA
DEPARTMENT OF WATER RESOURCES, CALIFORNIA’S GROUNDWATER (BULLETIN 118-03), at 29.
A more recent study estimates that average statewide groundwater overdraft exceeds two million
afa, with about 1.4 million afa occurring in the Tulare Basin alone. ELLEN HANAK, ET AL.,
MANAGING CALIFORNIA’S WATER: FROM CONFLICT TO RECONCILIATION 158 (PPIC 2011).
The Department of Water Resources has listed eleven specific groundwater basins as
being in “a critical condition of overdraft.” These are the Pajaro, Ventura Central, Chowchilla,
Kings, Tulare Lake, Kern County, Cuyama Valley, Eastern San Joaquin County, Madera,
Kaweah, and Tule basins. The Department estimates that aggregate overdraft is between one and
two million afa. CALIFORNIA DEPARTMENT OF WATER RESOURCES, CALIFORNIA WATER PLAN
UPDATE 2005 (BULLETIN 160-05), Vol. 1, at 3-13 to 3-14.
15.
Please pay particular attention to the ante-penultimate paragraph of the opinion in Katz.
The Court states that in all groundwater cases, regardless of the type of rights asserted by the
respective parties,
preliminary injunctions must be granted, if at all, only upon the clearest showing
that there is imminent danger of irreparable and substantial injury, and that the
diversion complained of is the real cause. Where the complainant has stood by
while the development was made for public use, and has suffered it to proceed at
7
large expense to successful operation, having reasonable cause to believe it would
affect his own water supply, the injunction should be refused and the party left to
his action for such damages as he can prove. If a party makes no use of the water
on his own land, or elsewhere, he should not be allowed to enjoin its use by
another who draws it out or intercepts it, or to whom it may go by percolation,
although perhaps he may have the right to a decree settling his right to use it when
necessary on his own land, if a proper case is made.
Is this law consistent with the law of surface water rights (before the adoption of Article
X, Section 2 in 1928) articulated in Anaheim Union Water Co. v. Fuller, 150 Cal. 327 (1907)?
Why would the Court adopt different rules regarding prescription and injunctive relief for
surface water disputes between riparian and appropriative right holders than it adopted in Katz
for disputes between overlying and non-overlying users?
16.
In Pasadena, the Supreme Court addressed the problems and consequences of overdraft,
as well as the respective rights of groundwater users when their aggregate pumping exceeds the
safe yield for an extended period of time. Rather than enforce the hierarchy of rights articulated
in Katz, the Court adopted the principle of “mutual prescription.” According to this doctrine, all
users—correlative rights holders and appropriators—should receive a pro rata share of the safe
yield of the aquifer. The Court ruled that each user’s share should be quantified based on its
“highest continuous production of water for beneficial use in any five year period prior to the
filing of the complaint” and after the overdraft of the aquifer commenced. The Court termed this
solution “mutual prescription,” because each user received a percentage of the amount that it
used unlawfully—i.e., in excess of the safe yield—vis-à-vis other users.
17.
Does the doctrine of mutual prescription make sense? What kind of rights do the various
overlying users and appropriators have following their mutual prescription. Do they retain their
original water rights, as limited or expanded by prescription, or do they all have a new equal
form of water right? Does it matter?
18.
Why should not the hierarchy of water rights articulated in Katz have been applied to
resolve the Pasadena dispute? Please note that, although the cities were among the most junior
appropriators and their rights to pump would have been significantly curtailed, they could have
acquired water from senior users in the basin through eminent domain.
19.
Did the Court’s reduction of the superior water rights of the overlying landowners (and
senior appropriators) to their pro rata share of the safe yield based on mutual prescription
constitute a taking property? Does not Justice Carter, despite his rhetoric, have a point?
20.
A problem that arises in most groundwater adjudications is case management—viz. how
should the trial court structure the litigation to address the competing water rights claims of
thousands of groundwater users? The Supreme Court addressed this question in Pasadena:
The objection is also made that the court erred in allocating water without the joinder of a
number of private users who pumped comparatively small amounts. The referee filed a
preliminary report which stated that it would be impracticable to attempt to include all
such parties. It recommended, however, that certain named parties who used fairly
8
substantial amounts be joined in the action, and the court ordered them brought in over
the objections of appellant. No request was made by appellant for the inclusion of any
party who had not been joined, and there is no showing that its interest was injuriously
affected by the failure to require the joinder of all possible claimants. (See Smith v.
Cucamonga Water Co., 160 Cal. 611, 617 [117 P. 764].) The line must be drawn
somewhere in order to bring the proceeding within practical bounds, and it would have
been impossible to reach a solution of the problems involves and to render a valid
judgment if jurisdiction to make an allocation depended upon the joinder of every person
having some actual or potential right to the water in the basin and its sources of supply.
The persons not made parties are, of course, not bound by the judgment, nor are they
injured by the injunction.
The practice of excluding “small producers” of groundwater has been followed in all
large groundwater adjudications since Pasadena.
21.
The decree in Pasadena became a model for several negotiated settlements of
groundwater rights disputes in Southern California and served as the basis for the Legislature’s
authorization of regional groundwater management agencies. These are described in Anne
Schneider’s report, Groundwater Rights in California.
22.
Although the Pasadena decision has had great influence on Southern California’s water
management policies, the doctrine of mutual prescription has been significantly circumscribed.
As we will learn in the next assignment, in City of Los Angeles v. City of San Fernando, 14 Cal.
3d 199 (1975), the Supreme Court limited the mutual prescription doctrine to the facts of the
Pasadena case, holding that prescriptive rights could not be asserted against cities and other
public water supply agencies without their consent. Thus, the Court rejected the claims of San
Fernando, Glendale, Burbank, the Crescenta Valley County Water District, and several private
parties that they had acquired mutually prescriptive rights vis-à-vis Los Angeles to the
groundwater of the Upper Los Angeles River Area.
9
KATZ v. WALKINSHAW
Supreme Court of California
141 Cal. 116 (1903)
SHAW, C.J.
A rehearing was granted in this case for the purpose of considering more fully, and by the
aid of such additional arguments as might be presented by persons not parties to the action, but
vitally interested in the principle involved, a question that is novel and of the utmost importance
to the application to useful purposes of the waters which may be found in the soil.
***
* * * The complaint, in substance, states that the plaintiffs had wells upon their
respective tracts of land, from which water flowed to the surface of the ground; that the water
was necessary for domestic use and irrigation on the lands on which they were situate; that the
defendant, by means of other wells and excavations upon another tract of land in the vicinity
prevented any water from flowing through the plaintiffs' wells to their premises, and that this
was done by drawing off the water through the wells of the defendant, taking it to a distant tract
and there using it. * * *
* * * It is contended that the rule that each landowner owns absolutely the percolating
waters in his land, with the right to extract, sell, and dispose of them as he chooses, regardless of
the results to his neighbor, is part of the common law, and as such has been adopted in this state
as the law of the land by the statute of April 13, 1850, (Stats. 1850, 219,) and by section 4468 of
the Political Code, and that, consequently, it is beyond the power of this court to abrogate or
change it; that the question comes clearly within the doctrine of stare decisis; that the rule above
stated has become a rule of property in this state upon the faith of which enormous investments
have been made, and that it should not now be departed from, even if erroneous; that even if the
question were an open one, the adoption of the doctrine of correlative rights in percolating waters
would hinder or prevent all further developments or use of underground waters, and endanger or
destroy developments already made, thus largely restricting the productive capacity and growth
of the state, and that, therefore, a sound public policy and regard for the general welfare demand
the opposite rule; that the doctrine of reasonable use of percolating waters would require an
equitable distribution thereof among the different landowners and claimants who might have
rights therein, that this would throw upon the courts the duty and burden of regulating the use of
such waters and the flow of the wells or tunnels, which would prove a duty impossible of
performance; and, finally, that if this rule is the law as to percolating waters, it must for the same
reason be the law with regard to the extraction of petroleum from the ground, and, if so, it would
entirely destroy the oil development and production of this state, and for that reason also that it is
against public policy and injurious to the general welfare.
The idea that the doctrine contended for by the defendant is a part of the common law
adopted by our statute, and beyond the power of the court to change or modify, is founded upon
a misconception of the extent to which the common law is adopted by such statutory provisions,
and a failure to observe some of the rules and principles of the common law itself. In Crandall
10
v. Woods, 8 Cal. 143, the court approved the following rule, quoting from the dissenting opinion
of Bronson, J., in Starr v. Child, 20 Wend. 159: "I think no doctrine better settled than that such
portions of the law of England as are not adapted to our condition form no part of the law of this
state. This exception includes not only such laws as are inconsistent with the spirit of our
institutions, but such as are framed with special reference to the physical condition of a country
differing widely from our own. It is contrary to the spirit of the common law itself to apply a
rule founded on a particular reason to a case where that reason utterly fails."
The true doctrine is, that the common law by its own principles adapts itself to varying
conditions, and modifies its own rules so as to serve the ends of justice under the different
circumstances, a principle adopted into our code by section 3510 of the Civil Code: "When the
reason of a rule ceases, so should the rule itself." This is well stated in Morgan v. King, 30 Barb.
16: "We are not bound to follow the letter of the common law, forgetful of its spirit; its rule
instead of its principle. A rule of law applicable to the fresh-water streams of England may be
wholly inapplicable to fresh-water streams in this country of the same nature and character,
because of different capacity, or because the adjoining country may furnish a commerce for them
unknown in England, and yet be subject to the same principle. If so, the common law modifies
its rules upon its own principles, and conforms them to the wants of the community, the nature,
character, and capacity of the subject to which they are to be applied." * * * Whenever it is
found that, owing to the physical features and character of this state, and the peculiarities of its
climate, soil, and productions, the application of a given common-law rule by our courts tends
constantly to cause injustice and wrong, rather than the administration of justice and right, then
the fundamental principles of right and justice on which that law is founded, and which its
administration is intended to promote, require that a different rule should be adopted, one which
is calculated to secure persons in their property and possessions, and to preserve for them the
fruits of their labors and expenditures. The question whether or not the rule contended for is a
part of the common law applicable to this state depends on whether it is suitable to our
conditions under the rule just stated.
It is necessary, therefore, to state the conditions existing in many parts of this state which
are different from those existing where the rule had its origin.
In a large part of the state, and in almost all of the southern half of it, particularly south of
the Tehachapi range of mountains, aside from grains, grasses, and some scant pasturage, there is
practically no production by agriculture except by means of artificial irrigation. In a few places
favored by nature crops are nourished by natural irrigation, due to the existence underneath the
ordinary soil of a saturated layer of sand or gravel, but these places are so few that they are of no
consequence in any general view of the situation. Irrigation in these regions has always been
customary, and under the Spanish and Mexican governments it was fostered and encouraged.
Even in the earlier periods of the settlement of the country, after its acquisition by the United
States, and while the population was sparse and scattered compared to the present time, the
natural supply of water from the surface streams, as diverted and applied by the crude and
wasteful methods then used, was not considered more than was necessary. As the population
increased, better methods of diversion, distribution, and application were adopted, and the
streams were made to irrigate a very much larger area of land. While this process was going on a
11
series of wet years augmented the streams, and still more land was put under the irrigating
systems.
Recently there has followed another series of very dry years, which has correspondingly
diminished the flow of the streams. After this period began it was soon found that the natural
streams were insufficient. The situation became critical, and heavy loss and destruction from
drought was imminent. Still the population continued to increase, and with it the demand for
more water to irrigate more land. Recourse was then had to the underground waters. Tunnels
were constructed, more artesian wells bored, and finally pumps driven by electric or steam power
were put into general use to obtain sufficient water to keep alive and productive the valuable
orchards planted at the time when water was supposed to be more abundant. The geological
history and formation of the country is peculiar. Deep borings have shown that almost all of the
valleys and other places where water is found abundantly in percolation were formerly deep
canons or basins, at the bottoms of which anciently there were surface streams or lakes. Gravel,
boulders, and occasionally pieces of driftwood have been found near the coast far below tidelevel, showing that these sunken stream-beds were once high enough to discharge water by
gravity into the sea. These valleys and basins are bordered by high mountains, upon which there
falls the more abundant rain. The deep canons or basins in course of ages have become filled
with the washings from the mountains, largely composed of sand and gravel, and into this porous
material the water now running down from the mountains rapidly sinks and slowly moves
through the lands by the process usually termed percolation, forming what are practically
underground reservoirs. It is the water thus held or stored that is now being taken to eke out the
supply from the natural streams. In almost every instance of a water supply from the so-called
percolating water, the location of the well or tunnel by which it is collected is in one of these
ancient canons or lake basins. Outside of these there is no percolating water in sufficient
quantity to be of much importance in the development of the country or of sufficient value to
cause serious litigation.
It is usual to speak of the extraction of this water from the ground as a development of a
hitherto unused supply. But it is not yet demonstrated that the process is not in fact, for the most
part, an exhaustion of the underground sources from which the surface streams and other
supplies previously used have been fed and supported. In some cases this has been proven by the
event. The danger of exhaustion in this way threatens surface streams as well as underground
percolations and reservoirs. Many water companies, anticipating such an attack on their water
supply, have felt compelled to purchase, and have purchased, at great expense, the lands
immediately surrounding the stream or source of supply, in order to be able to protect and secure
the percolations from which the source was fed. Owing to the uncertainty in the law, and the
absence of legal protection, there has been no security in titles to water-rights. So great is the
scarcity of water under the present demands and conditions that one who is deprived of water
which he has been using has usually no other source at hand from which he can obtain another
supply.
The water thus obtained from all these sources is now used with the utmost economy, and
is devoted to the production of citrus and other extremely valuable orchard and vineyard crops.
The water itself, owing to the tremendous need, the valuable results from its application, and the
constant effort to plant more orchards and vineyards to share in the great profits realized
12
therefrom, has become very valuable. In some instances it has been known to sell at the rate of
fifty thousand dollars for a stream flowing at the rate of one cubic foot per second.
Notwithstanding the great drain on the water supply, the economy in the distribution and
application, and the much larger area of land thereby brought under irrigation, there still remain
large areas of rich soil which are dry and waste for want of water. This abundance of land, with
the scarcity and high price of water, furnish a constant stimulus to the further exhaustion of the
limited amount of underground water, and a constant temptation to invade sources already
appropriated. The charms of the climate have drawn, and will continue to draw, immigrants
from the better classes of the eastern states, composed largely of men of experience and means,
energetic, enterprising, and resourceful. With an increasing population of this character, it is
manifest that nothing that is possible to be done to secure success will be left undone, and that
there must ensue in years to come a fierce strife, first to acquire and then to hold every available
supply of water.
It is scarcely necessary to state the conditions existing in other countries referred to, to
show that they are vastly different from those above stated. There the rainfall is abundant, and
water, instead of being of almost priceless value, is a substance that in many instances is to be
gotten rid of rather than preserved. Drainage is there an important process in the development of
the productive capacity of the land, and irrigation is unknown. The lands that from their
situation in this country are classed as damp lands would in those countries be either covered by
lakes or would be swamps and bogs. If one is deprived of water in those regions, there is usually
little difficulty in obtaining a sufficient supply near by, and at small expense. The country is
interlaced with streams of all sizes from the smallest brooklet up to large navigable rivers, and
the question of the water supply has but little to do with the progress or prosperity of the country.
It is clear also that the difficulties arising from the scarcity of water in this country are by
no means ended, but, on the contrary, are probably just beginning. The application of the rule
contended for by the defendants will tend to aggravate these difficulties rather than solve them.
Traced to its true foundation, the rule is simply this: that owing to the difficulties the courts will
meet in securing persons from the infliction of great wrong and injustice by the diversion of
percolating water, if any property right in such water is recognized, the task must be abandoned
as impossible, and those who have valuable property acquired by and dependent on the use of
such water must be left to their own resources to secure protection for their property from the
attacks of their more powerful neighbors, and failing in this, must suffer irretrievable loss; that
might is the only protection.
"The good old rule Sufficeth them, the simple plan, That they should take who
have the power, And they should keep who can."
The field is open for exploitation to every man who covets the possessions of another or
the water which sustains and preserves them, and he is at liberty to take that water if he has the
means to do so, and no law will prevent or interfere with him or preserve his victim from the
attack. The difficulties to be encountered must be insurmountable to justify the adoption or
continuance of a rule which brings about such consequences.
***
13
[Chief Justice Shaw then reviewed earlier California groundwater rights cases and
rejected the defendant’s contention that the Court had clearly recognized the doctrine of absolute
ownership.] In view of this conflicting and uncertain condition of the authorities, it cannot be
successfully claimed that the doctrine of absolute ownership is well established in this state. It is
proper to state that in all the opinions which have so readily quoted and approved the supposed
common-law rule, that injuries from interference with percolating waters were too obscure in
origin and cause, too trifling in extent, and relatively of too little importance, as compared to
mining industries and the wants of large cities, to justify or require the recognition by the courts
of any correlative rights in such waters, or the redress of such injuries, there has been no notice at
all taken of the conditions existing here, so radically opposite to those prevailing where the
doctrine arose. It is also to be observed that in some instances in the eastern states, mentioned in
the former opinion in this case, the injustice from the diversion of percolating waters has been so
glaring and so extensive that the court there was compelled to depart from its previously decided
cases and recognize the rights of adjoining owners.
We do not see how the doctrine contended for by defendant could ever become a rule of
property of any value. Its distinctive feature is the proposition that no property rights exist in
such waters except while they remain in the soil of the landowner; that he has no right either to
have them continue to pass into his land, as they would under natural conditions, or to prevent
them from being drawn out of his land by an interference with natural conditions on neighboring
land. Such right as he has is therefore one which he cannot protect or enforce by a resort to legal
means, and one which he cannot depend on to continue permanently or for any definite period.
It is apparent that the parties who have asked for a reconsideration of this case, and other
persons of the same class, if the rule for which they contend is the law, or no law, of the land,
will be constantly threatened with danger of utter destruction of the valuable enterprises and
systems of water-works which they control, and that all new enterprises of the same sort will be
subject to the same peril. They will have absolutely no protection in law against others having
stronger pumps, deeper wells, or a more favorable situation, who can thereby take from them
unlimited quantities of the water, reaching to the entire supply, and without regard to the place of
use. We cannot perceive how a doctrine offering so little protection to the investments in and
product of such enterprises, and offering so much temptation to others to capture the water on
which they depend, can tend to promote developments in the future or preserve those already
made, and, therefore, we do not believe that public policy or a regard for the general welfare
demands the doctrine. An ordinary difference in the conditions would scarcely justify the refusal
to adopt a rule of the common law, or one which has been so generally supposed to exist; but
where the differences are so radical as in this case, and would tend to cause so great a subversion
of justice, a different rule is imperative.
The doctrine of reasonable use, on the other hand, affords some measure of protection to
property now existing, and greater justification for the attempt to make new developments. It
limits the right of others to such amount of water as may be necessary for some useful purpose in
connection with the land from which it is taken. If, as is claimed in the argument, such waterbearing land is generally worthless except for the water which it contains, then the quantity that
could be used on the land would be nominal, and injunctions could not be obtained, or
14
substantial damages awarded, against those who carry it to distant lands. So far as the active
interference of others is concerned, therefore, the danger to such undertakings is much less, and
the incentive to development much greater, from the doctrine of reasonable use than from the
contrary rule. No doubt there will be inconvenience from attacks on the title to waters
appropriated for use on distant lands made by persons who claim the right to the reasonable use
of such waters on their own lands. Similar difficulties have arisen and now exist with respect to
rights in surface streams, and must always be expected to attend claims to rights in a substance
so movable as water. But the courts can protect this particular species of property in water as
effectually as water-rights of any other description.
It may, indeed, become necessary to make new applications of old principles to the new
conditions, and possibly to modify some existing rules, in their application to this class of
property rights; and in view of the novelty of the doctrine, and the scope of argument, it is not
out of place to indicate to some extent how it should be done, although otherwise it would not be
necessary to the decision of the case. The controversies arising will naturally divide into classes.
There will be disputes between persons or corporations claiming rights to take such
waters from the same strata or source for use on distant lands. There is no statute on this subject,
as there now is concerning appropriations of surface streams, but the case is not without
precedent. When the pioneers of 1849 reached this state they found no laws in force governing
rights to take waters from surface streams for use on non-riparian lands. Yet it was found that
the principles of the common law, although not previously applied to such cases, could be
adapted thereto, and were sufficient to define and protect such rights under the new conditions.
The same condition existed with respect to rights to mine on public land, and a similar solution
was found. (Kelly v. Natoma W. Co., 6 Cal. 108; Conger v. Weaver, 6 Cal. 557; Eddy v.
Simpson, 3 Cal. 253; Hill v. Newman, 5 Cal. 446; McDonald v. Bear River etc. Co., 13 Cal.
233.) The principles which, before the adoption of the Civil Code, were applied to protect
appropriations and possessory rights in visible streams will, in general, be found applicable to
such appropriations of percolating waters, either for public or private use, on distant lands, and
will suffice for their protection as against other appropriators. Such rights are usufructuary only,
and the first taker who with diligence puts the water in use will have the better right. And in
ordinary cases of this character the law of prescriptive titles and rights and the statute of
limitations will apply.
In controversies between an appropriator for use on distant land and those who own land
overlying the water-bearing strata, there may be two classes of such landowners: those who have
used the water on their land before the attempt to appropriate, and those who have not previously
used it, but who claim the right afterwards to do so. Under the decision in this case the rights of
the first class of landowners are paramount to that of one who takes the water to distant land; but
the landowner's right extends only to the quantity of water that is necessary for use on his land,
and the appropriator may take the surplus. As to those landowners who begin the use after the
appropriation, and who, in order to obtain the water, must restrict or restrain the diversion to
distant lands or places, it is perhaps best not to state a positive rule until a case arises. Such
rights are limited at most to the quantity necessary for use, and the disputes will not be so serious
as those between rival appropriators.
15
Disputes between overlying landowners, concerning water for use on the land, to which
they have an equal right, in cases where the supply is insufficient for all, are to be settled by
giving to each a fair and just proportion. And here again we leave for future settlement the
question as to the priority of rights between such owners who begin the use of the waters at
different times. The parties interested in the question are not before us.
In addition, there are some general rules to be applied. In cases involving any class of
rights in such waters, preliminary injunctions must be granted, if at all, only upon the clearest
showing that there is imminent danger of irreparable and substantial injury, and that the
diversion complained of is the real cause. Where the complainant has stood by while the
development was made for public use, and has suffered it to proceed at large expense to
successful operation, having reasonable cause to believe it would affect his own water supply,
the injunction should be refused and the party left to his action for such damages as he can prove.
(Fresno etc. Co. v. Southern Pacific Co., 135 Cal. 202; Southern California Ry. Co. v. Slauson,
138 Cal. 342.) If a party makes no use of the water on his own land, or elsewhere, he should not
be allowed to enjoin its use by another who draws it out or intercepts it, or to whom it may go by
percolation, although perhaps he may have the right to a decree settling his right to use it when
necessary on his own land, if a proper case is made.
The objection that this rule of correlative rights will throw upon the court a duty
impossible of performance, that of apportioning an insufficient supply of water among a large
number of users, is largely conjectural. No doubt cases can be imagined where the task would be
extremely difficult, but if the rule is the only just one, as we think has been shown, the difficulty
in its application in extreme cases is not a sufficient reason for rejecting it and leaving property
without any protection from the law.
The judgment of the court below is reversed and a new trial ordered.
16
CITY OF PASADENA v. CITY OF ALHAMBRA
Supreme Court of California
33 Cal. 2d 908 (1949)
GIBSON, C.J.
Plaintiff city, the chief producer of water from a 40 square mile alluvial-filled basin of
ground water known as the Raymond Basin Area, instituted this litigation to determine the
ground water rights within the area and to enjoin an alleged annual overdraft in order to prevent
eventual depletion of the supply. Pursuant to section 24 of the Water Commission Act, which
was then in force (Stats. 1913, p. 1012, as amended, Deering's Gen. Laws (1937), Act 90-91;
now Wat. Code, §§ 2000-2050), the trial court referred the matter to the Division of Water
Resources of the Department of Public Works for a determination of the facts, and the ensuing
report of the division was received in evidence. On the basis of this report all of the nondisclaiming parties, with the exception of the defendant California-Michigan Land and Water
Company, a public utility and the sole appellant herein, entered into a stipulation for a judgment
allocating the water and restricting total production to the safe annual yield. The court, after
hearing evidence presented by appellant in opposition to the report, rendered a judgment
substantially enforcing the terms of the stipulation against all parties, including appellant.
The principal issues presented on this appeal are whether the trial court properly limited
the amount of water that appellant may take from the ground in the Raymond Basin Area, and
whether it erred in placing the burden of curtailing the overdraft proportionately on all parties.
***
Findings and Judgment
The Raymond Basin Area, a field of ground water located at the northwest end of San
Gabriel Valley, includes the city of Sierra Madre, almost all of the city of Pasadena, and portions
of South Pasadena, San Marino, and Arcadia. The field of ground water contains alluvium
consisting of sands, gravels and other porous materials through which water percolates. The
northern side is formed by the San Gabriel range of mountains which rise back of the valley to a
general elevation of from 5,000 to 6,000 feet. The area comprises 40 square miles and is
separated from the rest of the valley along its southern boundary by the Raymond Fault,
sometimes known as Raymond Dike, a natural fault in the bedrock constituting a "Barrier in the
alluvium . . . which greatly impedes the sub-surface movement of water from the area, although
it does not entirely stop it, thus creating a vast underground storage reservoir." There is a
pronounced slope to the south from elevations of 1,000 feet above sea level at the mountains to a
general elevation of 500 to 700 feet at Raymond Fault.
In this part of the state there is ordinarily a series of wet years followed by a number of
dry years, making it necessary during periods of above-normal rainfall to store water for future
use. It appears, however, that the ground water storage capacity is adequate to store the excess
during wet years for the following dry years.
17
Natural underground formations divide the area into two practically separate units. The
Western Unit, the larger of the two, consists of the Monk Hill Basin, which is to the northwest,
and the Pasadena Subarea. The Eastern Unit, or Santa Anita Subarea, lies immediately to the
east of the Pasadena Subarea. At the present water table elevations movement of ground water
from the Western to the Eastern Unit is so small as to be immaterial but it might be increased by
an overdraft in the Eastern Unit. Movement from the Eastern to the Western Unit is almost
totally lacking.
Our concern is with the Western Unit where the principal ground water movement is
from north and west of Monk Hill to the south and east and across Raymond Fault. The water in
this unit is replenished by rainfall, by return water arising from the use of water in the unit, and
by the runoff and underflow from the San Gabriel Mountains to the north and from the San
Rafael hills to the west. Appellant's wells, from which it obtains all its production, are in the
southeastern part of this unit, and the underlying water constitutes one ground water body which
is a common source of all parties taking water therefrom. The water pumped from the ground in
the Western Unit has exceeded the safe yield thereof in every year since 1913-14 (commencing
October 1) except during the years 1934-35 and 1936-37. The safe yield of the unit was found to
be 18,000 acre feet per year, but the average annual draft was 24,000 acre feet, resulting in an
average annual overdraft of 6,000 feet.
With respect to the water rights acquired by the various parties it was stipulated by all of
them, including appellant, that "all of the water taken by each of the parties to this stipulation and
agreement, at the time it was taken, was taken openly, notoriously and under a claim of right,
which claim of right was continuously and uninterruptedly asserted by it to be and was adverse
to any and all claims of each and all of the other parties joining herein."
The findings set forth in terms of acre feet per year "the highest continuous production of
water for beneficial use in any five (5) year period prior to the filing of the complaint by each of
the parties in each of said units, as to which there has been no cessation of use by it during any
subsequent continuous five (5) year period." This was designated, for convenience, the "present
unadjusted right" of each party, and the court concluded that each party owned "by prescription"
the right to take a certain specified amount of water, and that the rights of the parties were of
equal priority. The total of the unadjusted rights for the Western Unit was found to be 25,608
acre feet per year, and water pumped by nonparties to the action was 340 acre feet per year. The
court also found that a continued draft in these amounts will result in an unreasonable depletion
and the eventual destruction of the ground water as a source of supply; that any increase in the
amounts taken in the Eastern Unit will deplete the ground water supply in that unit; that in order
to protect the supply it is necessary that the parties in the Western Unit be limited by reducing
the "present unadjusted right of each such party in the proportion that the safe yield of said unit,
less the water taken therein by nonparties hereto, bears to the aggregate of such rights of parties
hereto in said unit, and that each of the parties pumping or otherwise taking water from the
ground in the Eastern Unit be limited to the amount of its present unadjusted right." The amount
of water limited to each party, designated the "decreed right," was set out in the findings, and this
allocation gave each party about two-thirds of the amount it had been pumping.
18
The court enjoined all pumping in excess of the decreed right and appointed a "Water
Master" to enforce the provisions of the judgment. It reserved jurisdiction to modify the
judgment or make such further orders as might be necessary for adequate enforcement or for
protection of the waters in the Raymond Basin Area from contamination.
Sufficiency of Evidence
Appellant takes the position that the ground water in the Western Unit is not contained in
a single storage basin or reservoir as found by the court, but, rather, flows in certain defined
underground streams from the northwestern portion to the southeastern section in much the same
manner as water flows in surface streams, and that these streams, together with a flow of water
from the Eastern Unit, converge at the lower level where appellant's wells are located. It argues
that its taking of water cannot possibly injure the upper claimants because once the water has
reached a lower level it cannot flow back upstream to the wells of the other parties.
The report states that no substantial quantity of water from the Eastern Unit now reaches
appellant's wells. It also indicates that the ground water of the Western Unit is analogous to
water stored in a large lake or reservoir, through which several currents slowly flow from inlet to
outlet. Raymond Fault is similar to a dam in that it impedes the movement of water and backs it
up over a considerable area, and pumping tests established that when the water table was lowered
in one well, the effect could be measured in wells almost 2 miles away. These tests were
conducted over comparatively short periods of time, the greatest being about three days, and
since the water moves very slowly through the alluvium, it could be inferred that the effect
would have been much more widespread if the test-pumping had been continued for a longer
time.
There is nothing in the record which would compel a finding that the difference in
elevation between the Monk Hill Basin and the Pasadena Subarea is so great that wells in the
northwest will be entirely unaffected by long-continued excessive pumping elsewhere in the unit.
Moreover, as the referee points out, the serious overdraft is in the area where appellant takes its
water, and its pumping directly reduces the supply where water is most needed. The record
shows that in view of the smaller overdraft in the Monk Hill Basin the parties situated there
suffered a greater ratable cut under the injunction than persons in the Pasadena Subarea, and that
appellant has been helped rather than injured by inclusion of the Monk Hill Basin as part of the
underground storage area.
Appellant contends that the safe yield was greatly understated, and that there was little, if
any, overdraft. Eighteen thousand acre feet per year was found to be the safe yield in the
Western Unit, and this figure was based upon the report of the referee which calculated the
amount from changes in the water stored underground and in the water table elevation as
compared with the amount of water extracted by pumping. It is asserted that the referee failed to
measure and include the underflow from the San Gabriel Mountains and the waters conserved
upon the surface by artificial means. All sources of underground water, however, were
automatically included by the method of calculation employed by the referee, and it was not
necessary to make the specific measurements mentioned by appellant. Moreover, it is obvious
from many statements in the report that surface conservation and underflow were given full
consideration by the referee.
19
The Main Issue
There can be no question that the trial court had authority to limit the taking of ground
water for the purpose of protecting the supply and preventing a permanent undue lowering of the
water table. (Burr v. Maclay Rancho Water Co., 154 Cal. 428, 438 [98 P. 260]; City of San
Bernardino v. City of Riverside, 186 Cal. 7, 16 [198 P. 784]; cf., Allen v. California Water & Tel.
Co., 29 Cal. 2d 466, 485-486 [176 P.2d 8].) The main problems presented are which of the
parties should bear the burden of curtailing the total production of the unit to the safe yield and
what proportion, if any, of the pumping by each particular party should be restricted. Since the
stipulation made by the other parties as to the reduction in pumping by each is not binding upon
appellant, it is necessary to determine appellant's rights in relation to the other producers in the
same manner as if there had been no agreement.
The question of who shall bear the burden of curtailing the overdraft, and in what
proportion, depends upon the legal nature and status of the particular water right held by each
party. Rights in water in an underground basin, so far as pertinent here, are classified as
overlying, appropriative, and prescriptive. Generally speaking, an overlying right, analogous to
that of a riparian owner in a surface stream, is the right of the owner of the land to take water
from the ground underneath for use on his land within the basin or watershed; the right is based
on ownership of the land and is appurtenant thereto. (See Hillside Water Co. v. Los Angeles, 10
Cal. 2d 677, 686 [76 P.2d 681]; Miller v. Bay Cities Water Co., 157 Cal. 256, 279-280 [107 P.
115]; 26 Cal. Jur. 271-277; 2 Wiel, Water Rights [3d ed., 1911], §§ 1100-1105, pp. 1040-1045.)
The right of an appropriator depends upon an actual taking of water. (See 26 Cal. Jur. 277.) The
term "appropriation" is said by some authorities to be properly used only with reference to the
taking of water from a surface stream on public land for nonriparian purposes. (See Wiel, Water
Rights [3d ed., 1911] §§ 228, 1107, 1158, 1159, and § 231 in the "reprint ed." of the 3d ed.;
Farnham, Waters and Water Rights [1904] '' 672a; 56 Am. Jur. 599.) The California courts,
however, use the term to refer to any taking of water for other than riparian or overlying uses.
(City of San Bernardino v. City of Riverside, 186 Cal. 7, 13-14 [198 P. 784]; Burr v. Maclay
Rancho Water Co., 154 Cal. 428, 436 [98 P. 260]; Katz v. Walkinshaw, 141 Cal. 116, 135 [70 P.
663, 74 P. 766, 99 Am. St. Rep. 35, 64 L.R.A. 236]; see 26 Cal. Jur. 273-274.) Where a taking is
wrongful, it may ripen into a prescriptive right.
Although the law at one time was otherwise, it is now clear that an overlying owner or
any other person having a legal right to surface or ground water may take only such amount as he
reasonably needs for beneficial purposes. (Katz v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P.
766, 99 Am. St. Rep. 35, 64]; Peabody v. City of Vallejo, 2 Cal. 2d 351 [40 P.2d 486]; Cal.
Const., art. XIV, § 3.) Public interest requires that there be the greatest number of beneficial
uses which the supply can yield, and water may be appropriated for beneficial uses subject to the
rights of those who have a lawful priority. (Peabody v. City of Vallejo, 2 Cal. 2d 351, 368 [40
P.2d 486].) Any water not needed for the reasonable beneficial uses of those having prior rights
is excess or surplus water. In California surplus water may rightfully be appropriated on
privately owned land for non-overlying uses, such as devotion to a public use or exportation
beyond the basin or watershed. (Peabody v. City of Vallejo, 2 Cal. 2d 351, 368-369 [40 P.2d
486]; City of San Bernardino v. City of Riverside, 186 Cal. 7, 29, 30 [198 P. 784]; Burr v.
20
Maclay Rancho Water Co., 154 Cal. 428, 436 [98 P. 260]; Katz v. Walkinshaw, 141 Cal. 116,
135 [70 P. 663, 74 P. 766]; see 26 Cal. Jur. 32 et seq., 273-274.)
It is the policy of the state to foster the beneficial use of water and discourage waste, and
when there is a surplus, whether of surface or ground water, the holder of prior rights may not
enjoin its appropriation. (Peabody v. City of Vallejo, 2 Cal. 2d 351, 368-369, 372 [40 P.2d 486];
see 26 Cal. Jur. 277.) Proper overlying use, however, is paramount, and the right of an
appropriator, being limited to the amount of the surplus, must yield to that of the overlying
owner in the event of a shortage, unless the appropriator has gained prescriptive rights through
the taking of nonsurplus waters. As between overlying owners, the rights, like those of riparians,
are correlative and are referred to as belonging to all in common; each may use only his
reasonable share when water is insufficient to meet the needs of all. (Katz v. Walkinshaw, 141
Cal. 116 [70 P. 663, 74 P. 766]). As between appropriators, however, the one first in time is the
first in right, and a prior appropriator is entitled to all the water he needs, up to the amount that
he has taken in the past, before a subsequent appropriator may take any. (City of San Bernardino
v. City of Riverside, 186 Cal. 7, 26-28 [198 P. 784]; cf., Civ. Code, § 1414.)
Prescriptive rights are not acquired by the taking of surplus or excess water, since no
injunction may issue against the taking and the appropriator may take the surplus without giving
compensation; however, both overlying owners and appropriators are entitled to the protection of
the courts against any substantial infringement of their rights in water which they reasonably and
beneficially need. (Peabody v. City of Vallejo, 2 Cal. 2d 351, 368-369, 374 [40 P.2d 486].)
Accordingly, an appropriative taking of water which is not surplus is wrongful and may ripen
into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the
original owner, continuous and uninterrupted for the statutory period of five years, and under
claim of right. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 22-23 [198 P. 784]; Katz
v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766]. To perfect a claim based upon
prescription there must, of course, be conduct which constitutes an actual invasion of the former
owner's rights so as to entitle him to bring an action. (City of Los Angeles v. City of Glendale, 23
Cal. 2d 68, 79 [142 P.2d 289].) Appropriative and prescriptive rights to ground water, as well as
the rights of an overlying owner, are subject to loss by adverse user. This is in accord with the
rule announced in cases dealing with water in a surface stream. (See Yankee Jim's Union Water
Co. v. Crary, 25 Cal. 504, 508-509 [85 Am. Dec. 145]; Big Rock M. W. Co. v. Valyermo Ranch
Co., 78 Cal. App. 266, 273 [248 P. 264]; Peabody v. City of Vallejo, 2 Cal. 2d 351, 374 [40 P.2d
486]; Duckworth v. Watsonville etc. Co., 150 Cal. 520, 529-532 [89 P. 338]; Davis v. Gale, 32
Cal. 26, 35 [91 Am. Dec. 554]; 3 Farnham, Waters and Water Rights [1904], § 680a, p. 2106; 1
Wiel, Water Rights [3d ed., 1911], § 580, pp. 625-626; 56 Am. Jur. 773.)
In the present case some of the parties, including owners of ranches, golf clubs, and
cemeteries, have pumped water solely for use on their own land, and their rights at the outset
were overlying. The principal takers of water, however, are public utility corporations and
municipalities which have either exported water or have used it within the Western Unit for
municipal purposes or for sale to the public, and their taking, when commenced, was entirely
appropriative. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 29 [198 P. 784]; Eden
Township County Water Dist. v. Hayward, 218 Cal. 634, 640 [24 P.2d 492].) Appellant exports
about three-fourths of the water produced by it to customers located outside the area, and it
21
claims overlying rights as to the other one-fourth which it takes. As to the exported water it is
clear that its rights could not be overlying in character, but are either appropriative or
prescriptive.
It follows from the foregoing that, if no prescriptive rights had been acquired, the rights
of the overlying owners would be paramount, and the rights of the appropriators would depend
on priority of acquisition under the rule that the first appropriator in time is the first in right. The
latest in time of the appropriations would then be the first to be curtailed in limiting total
production of the area to the safe yield. If such were the case, the overdraft could be eliminated
simply by enjoining a part of the latest appropriations, since the record shows that there is ample
water to satisfy the needs of all the overlying users and most of the appropriators, and appellant's
appropriative rights would depend primarily upon evidence of priority in time of acquisition.
The principal dispute between appellant and respondents, however, concerns whether any
water rights in the Western Unit have become prescriptive and, if so, to what extent.
Respondents assert that the rights of all the parties, including both overlying users and
appropriators, have become mutually prescriptive against all the other parties and, accordingly,
that all rights are of equal standing, with none prior or paramount. Appellant, on the other hand,
contends that in reality no prescriptive rights have been acquired, and that there has been no
actionable invasion or injury of the right of any party using water because each party has been
able to take all the water it needed and no party has in any manner prevented a taking of water by
any other party. It would follow, under appellant's theory, that not even an overlying owner
could have obtained an injunction against a subsequent taking.
We must look, therefore, to see if the disputed elements for a prescriptive right are shown
by the record. Most of the factors are covered by the stipulation in which all the parties,
including appellant, joined, namely, that "all of the water taken by each of the parties to this
stipulation and agreement was, at the time it was taken, taken openly, notoriously, and under a
claim of right, which claim of right was continuously and uninterruptedly asserted by it to be and
was adverse to any and all claims of each and all of the other parties joining herein." Two
necessary elements are omitted: The length of the period over which the adverse user continued
and the nature and extent of actual adverse user, if any.
The evidence clearly supports the finding which designates in terms of acre feet per year
"the highest continuous production of water for beneficial use in any five (5) year period prior to
the filing of the complaint by each of the parties in each of said units, as to which there has been
no cessation of use by it during any subsequent continuous five (5) year period."
The record shows that there has been an actual adverse user of water in the Western Unit.
There was an invasion to some extent at least, of the rights of both overlying owners and
appropriators commencing in the year 1913-1914, when the overdraft first occurred. Each taking
of water in excess of the safe yield, whether by subsequent appropriators or by increased use by
prior appropriators, was wrongful and was an injury to the then existing owners of water rights,
because the overdraft, from its very beginning, operated progressively to reduce the total
available supply. Although no owner was immediately prevented from taking the water he
needed, the report demonstrates that a continuation of the overdraft would eventually result in
22
such a depletion of the supply stored in the underground basin that it would become inadequate.
The injury thus did not involve an immediate disability to obtain water, but, rather, it consisted
of the continual lowering of the level and gradual reducing of the total amount of stored water,
the accumulated effect of which, after a period of years, would be to render the supply
insufficient to meet the needs of the rightful owners.
The proper time to act in preserving the supply is when the overdraft commences, and the
aid of the courts would come too late and be entirely inadequate if, as appellant seems to suggest,
those who possess water rights could not commence legal proceedings until the supply was so
greatly depleted that it actually became difficult or impossible to obtain water. Where the
quantity withdrawn exceeds the average annual amount contributed by rainfall, it is manifest that
the underground store will be gradually depleted and eventually exhausted, and, accordingly, in
order to prevent such a catastrophe, it has been held proper to limit the total use by all consumers
to an amount equal, as near as may be, to the average supply and to enjoin takings in such
quantities or in such a manner as would destroy or endanger the underground source of water.
(City of San Bernardino v. City of Riverside, 186 Cal. 7, 15-16 [198 P. 784]; Burr v. Maclay
Rancho Water Co., 154 Cal. 428, 438 [98 P. 260].) There is, therefore, no merit to the
contention that the owners of water rights were not injured by the additional appropriations made
after all surplus waters were taken, and they clearly were entitled to obtain injunctive relief to
terminate all takings in excess of the surplus as soon as it became apparent from the lowering of
the well levels that the underground basin would be depleted if the excessive pumping were
continued.
The lowering of the water table resulting from the overdraft was plainly observable in the
wells of the parties, and the records of water levels in appellant's own wells afford an excellent
example of the yearly changes from about 1919 to 1937, when the complaint herein was filed.
Using figures taken at about the same time each year to minimize the effect of seasonal
variations, it appears that the surface of the water in appellant's well No. 1 was at an elevation of
559 feet above sea level in August, 1920, as compared with 485 feet in August, 1937, amounting
to a drop of 74 feet. Appellant's well No. 4 was measured at the 570-foot level in August, 1920,
and at 499 feet in September, 1937, a drop of 71 feet. Appellant's well No. 5 was at 553.1 feet in
August, 1928, and at 514 feet in August, 1937, a drop of 39.1 feet in the shorter period of nine
years. Well No. 6 was at the 542-foot level in August, 1919, at 568.2 feet in November, 1924,
and at 515 feet in August, 1937, a net drop of 27 feet. Appellant's well No. 7 was at 565.2 feet in
October, 1924, and at 484 feet in August, 1937, a drop of 81.2 feet. Well No. 8 has records only
for 1937 and 1938, and there are no records for two other wells, Nos. 2 and 3, which appellant
has apparently abandoned.
This evidence is clearly sufficient to justify charging appellant with notice that there was
a deficiency rather than a surplus and that the appropriations causing the overdraft were
invasions of the rights of overlying owners and prior appropriators. The elements of prescription
being present in the record, the statute of limitations ran against the original lawful holders of
water rights to whatever extent their rights were invaded.
It must next be determined whether the rights of all of the prior owners were invaded and
whether all or only a part of the right of any particular owner was damaged. It has been
23
established that the rights of appropriators as well as of overlying owners will be protected by the
courts and that an invasion of either type of right will start the running of the statute. Where, as
here, subsequent appropriators reduce the available supply and their acts, if continued, will
render it impossible for the holder of a prior right to pump in the future, there is an enjoinable
invasion. In this respect there is no difference between an overlying owner and an appropriator.
Although neither may prevent a taking of surplus waters, either may institute legal proceedings
to safeguard the supply once a surplus ceases to exist and may enjoin any additional user beyond
the point of safe yield.
***
Neither the overlying owners nor the appropriators took steps to obtain the aid of the
courts to protect their rights until the present action was instituted, many years after the
commencement of the overdraft, and at first glance it would seem to follow that the parties who
wrongfully appropriated water for a period of five years would acquire prior prescriptive rights
to the full amount so taken. The running of the statute, however, can effectively be interrupted
by self help on the part of the lawful owner of the property right involved. Unlike the situation
with respect to a surface stream where a wrongful taking by an appropriator has the immediate
effect of preventing the riparian owner from receiving water in the amount taken by the
wrongdoer, the owners of water rights in the present case were not immediately prevented from
taking water, and they in fact continued to pump whatever they needed. As we have seen, the
Raymond Basin Area is similar to a large lake or reservoir, and water would be available until
exhaustion of the supply. The owners were injured only with respect to their rights to continue
to pump at some future date. The invasion was thus only a partial one, since it did not
completely oust the original owners of water rights, and for the entire period both the original
owners and the wrongdoers continued to pump all the water they needed.
The pumping by each group, however, actually interfered with the other group in that it
produced an overdraft which would operate to make it impossible for all to continue at the same
rate in the future. If the original owners of water rights had been ousted completely or had failed
to pump for a five-year period, then there would have been no interference whatsoever on the
part of the owners with the use by the wrongdoers, and the wrongdoers would have perfected
prior prescriptive rights to the full amount which they pumped. As we have seen, however, such
was not the case, and, although the pumping of each party to this action continued without
interruption, it necessarily interfered with the future possibility of pumping by each of the other
parties by lowering the water level. The original owners by their own acts, although not by
judicial assistance, thus retained or acquired a right to continue to take some water in the future.
The wrongdoers also acquired prescriptive rights to continue to take water, but their rights were
limited to the extent that the original owners retained or acquired rights by their pumping.
A partial analogy may be found in Smith v. Hampshire, 4 Cal. App. 8 [87 P. 224], where
the appellant had constructed a ditch across the respondents' land and used it adversely for 10
years, but the respondents, for six years, had used a portion of the ditch jointly with but adversely
to appellant. It was held that both had acquired rights in the ditch and that respondents' acts,
being hostile to appellant's asserted claim of exclusive right, operated to conserve respondents'
right to use the ditch. The court said (p. 11): "While respondents could not acquire a prescriptive
24
right to a right of way over their own land, they could destroy appellant's claim of exclusive right
by open, peaceable, notorious and continuous adverse use, and thus establish their right (as
against his asserted, exclusive claim) to use the ditch themselves for a limited purpose and
commingle their water with his in so doing."
We need not determine whether the overlying owners involved here retained simply a
part of their original overlying rights or whether they obtained new prescriptive rights to use
water. (See Glatts v. Henson, 31 Cal. 2d 368, 371 [188 P.2d 745].) The question might become
important in order to ascertain the rights of the parties in the event of possible future
contingencies, but these may never happen.
Adoption of appellant's position that the water must be allocated, at least as between the
municipalities and public utility companies, strictly on the basis of priority in time of
appropriation would not only ignore the fundamental principle that the statute of limitations runs
against persons who fail to act when their rights are invaded, but it would result in an unequal
sharing of the burden of curtailing the overdraft in that all pumping conducted under authority of
certain of the later appropriations would be completely eliminated, whereas no restriction in
amount would be imposed upon pumping based on earlier appropriations. Such a result does not
appear to be justified where all of the parties have been producing water from the underground
basin for many years, and none of them have acted to protect the supply or prevent invasion of
their rights until this proceeding was instituted. Moreover, it seems probable that the solution
adopted by the trial court will promote the best interests of the public, because a pro tanto
reduction of the amount of water devoted to each present use would normally be less disruptive
than total elimination of some of the uses.
We hold, therefore, that prescriptive rights were established by appropriations made in
the Western Unit subsequent to the commencement of the overdraft, that such rights were
acquired against both overlying owners and prior appropriators, that the overlying owners and
prior appropriators also obtained, or preserved, rights by reason of the water which they pumped,
and that the trial court properly concluded that the production of water in the unit should be
limited by a proportionate reduction in the amount which each party had taken throughout the
statutory period.
Other Contentions
***
The court reserved jurisdiction, among other things, to review its determination of the
safe yield of the Raymond Basin Area and the rights of all the parties as affected by the
abandonment or forfeiture of any right. The reservation specifies that "in the event material
change be found or any such abandonment or forfeiture be established" the court can "adjudicate
that the decreed right of each party to pump or otherwise take water from the ground in the
Raymond Basin Area shall be changed proportionately in the same manner as originally fixed
herein. . . ." Review of the safe yield was to be had "not more frequently than at five (5) year
intervals." Appellant concedes that the court would have power to retain jurisdiction to readjust
the rights of the parties in accordance with the law and the facts as they may be at the time, but it
25
asserts that the court went beyond its authority and decreed as to rights which may be attained in
the future insofar as it reserved jurisdiction to pass upon abandoned or forfeited waters and
provided that the right of each party should be altered proportionately in the event of any
material change or abandonment. The five-year limitation upon redetermination of the safe yield
is also challenged by appellant.
The retention of jurisdiction to meet future problems and changing conditions is
recognized as an appropriate method of carrying out the policy of the state to utilize all water
available. (Allen v. California Water & Tel. Co., 29 Cal. 2d 466, 488 [176 P.2d 8]; City of Los
Angeles v. City of Glendale, 23 Cal. 2d 68, 81 [142 P.2d 289].)
In the present case, the trial court concluded that each party owned "by prescription" its
"present unadjusted right," that is, the amount which it had been actually pumping. The effect of
the judgment is to decree that, while the parties have this present right, it is necessary, in order to
conserve the basin and preserve the rights of all parties, to limit the takings to the amount of the
safe yield and therefore to make a pro tanto or proportionate reduction in the amount which each
can be permitted to pump until such time as conditions warrant an increase. This solution of the
problem recognizes that the original owners have some rights to continue to pump in the future,
that at the same time certain prescriptive rights have ripened on the basis of appropriations made
after the overdraft commenced, and that the rights of each of the parties are measured by the
amounts of the respective takings. Under such circumstances, it is proper to provide that, if the
amount of the safe yield is increased, the permissible takings shall be increased proportionately
up to the amount of the "present unadjusted right" of each party. The adjudication thus applies to
existing rights, and there is no declaration as to future rights in water to which a party has no
present right. Accordingly, the action of the court is not in conflict with the statement in City of
San Bernardino v. City of Riverside, 186 Cal. 7 at pages 30-31 [198 P. 784], to the effect that a
court should not undertake to make a declaration as to future rights.
We are of the opinion, however, that the five-year limitation upon the power to review
the determination of safe yield tends to defeat the purpose of the rule giving the trial court
continual supervisory powers in water rights cases, and that the judgment should be modified to
preserve a broad retention of jurisdiction in the trial court to change its decree and orders, after
notice and hearing, as the occasion may require. * * *
As so modified, the judgment is affirmed, respondents to recover costs on appeal.
CARTER, J. I dissent.
While the issues in this case are limited to the rights of overlying land owners and
appropriators of underground percolating waters, the majority opinion purports to cover a much
wider range in its pronouncements in the field of water law. Any student in this branch of our
law must be impressed with the hodge-podge of conflicting rules and principles enunciated in the
various decisions of this court and the District Courts of Appeal, particularly during the past two
or three decades, and the majority opinion in this case simply adds to the confused state of
affairs. Having had a somewhat limited experience in the trial of cases involving principles of
water law, I have had the urge for some time to prepare a symposium of the decisions of our
26
courts in recent years, which, to my mind, leaves this branch of our law in a state of hopeless
confusion. However, I do not consider this case a proper vehicle in which to undertake this work
and I shall await a more propitious occasion.
* * * I can see no objection * * * to a trial court availing itself of the investigating
facilities of the [Division of Water Resources of the Department of Public Works] and making
use of the data thus obtained in the solution of problems of this character, but I am unqualifiedly
opposed to the view expressed in some of the decisions of this court relative to the infallibility of
the division, and the necessity that trial courts refer every case involving problems relating to
water rights to the division and accept its determination of all questions of both fact and law. I
am convinced from an examination of the record in this case that that is just what the trial court
did in determining the rights of the parties to this action. It is obvious that principles of water
law were disregarded, that the division made a determination based upon the quantity of water
available and the requirements of the respective parties, and divided the water accordingly,
regardless of prior appropriations, prescriptive rights, or rights of overlying owners. They
accomplish this unique result by evolving a new and novel theory of each user acquiring a right
against the other by prescription or adverse use, thus destroying all priorities and placing each
user upon an equal footing with the other, regardless of the time of origin or bases of his right.
This is certainly a "new look" in the field of water law. We have indeed come a long way from
the rugged individualism of the riparian right "rocking chair" doctrine, and the doctrine of prior
appropriation, and also the doctrine of prescriptive rights.1 If it may be said that the doctrine of
those cases was based upon a philosophy of "rugged individualism," I would say that the
doctrine laid down in the majority opinion in the case at bar is based upon the philosophy of
bureaucratic communism. Under this latter doctrine, long established, and what was thought to
be, a prior, vested right to divert and use a given quantity of water is not only placed upon a
parity with later acquired rights, but an administrative agency of the state steps in and
administers the distribution of such water at the expense of the users. This may not be the type
of obnoxious stateism which exists in many other countries, but it is certainly a very definite step
in that direction. As one who believes in the concept embraced within both the federal and state
Constitutions that an owner of private property has the right to exercise ownership and control
over it and make such use of it as he may see fit so long as he causes no injury to others thereby,
I am opposed to state supervision and control of privately owned water rights, as well as other
privately owned property. I know of no reason, and none has been suggested, why parties
engaged in water litigation may not prepare and present evidence in support of their rights with
as much probative value as that obtained by the Division of Water Resources.
***
I am disposed to agree with counsel for appellant that "One would search the books a
long, long time before any law could be found that overlying owners' rights can be put into a
hopper and come out appropriative or prescriptive rights, or that appropriative or prescriptive
rights are co-equal with overlying owners' rights." I am sure that no cases can be found, even in
1
[Justice Carter’s lengthy citation of cases, including Lux v. Haggin and Anaheim Union
Water Co. v. Fuller, is omitted.—Ed.]
27
the confused and muddled state of our water law which give support to such an absurd
pronouncement.
***
In this case we have both overlying owners and appropriators using the water, and
apparently all the water any of them had had need for. Yet we are asked to believe that each and
every one of them has, in some way, gained a prescriptive right against each and every one of the
others because the water level in the wells has been lowered. It appears from the report of the
Water Commission that the underground supply has been withdrawn to a greater extent than is
consistent with water conservation measures. It appears to me that the only question involved is
that of priority in time of appropriation.
With respect to appropriators, the Civil Code provides that one prior in time is prior in
right. (§ 1414.) This rule seems to be agreed upon by the text writers and a great number of
cases. To state the general rule affirmatively, an appropriator of water is entitled, as against all
subsequent claimants, to the exclusive use of the water to the extent of his appropriation, without
diminution or material alteration in quantity or quality. The residue after a prior appropriation
may be appropriated by others out of the water of the same stream, if there is no interference
with the prior appropriation. When a senior appropriator does not need all or some portion of
the water, a junior appropriator may, at such times, use such unused waters, although the rights
of the senior appropriators, when fully exercised, consume the entire flow.
***
As a solution to the problem, the majority opinion affirms the trial court and in so doing
holds that the appropriators, including appellant, shall have allocated among them the water
shortage. This is to be done by a proportionate reduction of the amount each appropriator has
heretofore been pumping. The majority cite no authority for this proposition. It is submitted that
this is not, and should not be the law. In times of natural or other deficiency, also, unless
otherwise provided by statute, the prior appropriator may still claim his full amount; the loss
must fall on the later appropriators. (Wiel, Water Rights, supra, p. 311, and cases cited therein.)
This follows naturally from the rule that prior in time is prior in right, and this rule is found in
section 1414 of the Civil Code.
The majority of this court, in holding that the prior appropriator's rights should be
diminished proportionately with those of subsequent appropriators, is, in so doing, interfering
with a vested property right, and comes squarely within the limitation on the police power of the
state as set forth in the Fourteenth Amendment to the Constitution of the United States. The
subsequent appropriators are charged with knowledge of the rights in the water acquired at a
time prior to the time their rights were acquired, and it is they, rather than those who were first in
time, whose rights should be subject to the exercise of the police power in the interests of the
public in water conservation.
***
28
The effect of the majority decision is to say to the overlying owners of land situated on an
underground basin filled with percolating waters, that: "You have no cause of action against an
appropriator of water for a non-overlying use unless you can show that he is taking other than
excess or surplus water, but if you do not commence an action to restrain such diversion, such an
appropriator may obtain a prescriptive right against you if it should later be determined that he is
taking water to which you and other overlying land owners may be entitled." Anyone who has
the slightest knowledge of situations of this character should realize that this would place an
impossible burden upon the overlying land owner and greatly jeopardize his rights. His
difficulty would be multiplied if there were a number of overlying owners taking water from the
same basin. Obviously, the overlying land owner should have an immediate cause of action
against the appropriator, and the burden should be on the latter to show that he is taking only
surplus or excess water or cease his diversion. So far as subsequent appropriators are concerned,
the prior appropriator should have the right to rely upon section 1414 of the Civil Code and the
above cited authorities which should vouchsafe to him a prior and superior right based upon his
prior appropriation.
Since the decision of the trial court, which is affirmed by the majority decision of this
court, is completely out of harmony with every statute, principle and rule of law which has
heretofore been enacted and promulgated, I would reverse the judgment and remand the cause
for a new trial in accordance with what should be the settled law of this state.
29
Anne Schneider, Groundwater Rights in California
Governor's Commission to Review California Water Rights Law,
Staff Paper No. 2, pp. 37-62 (1977)
***
Different Organizational Approaches to Basin Management
a.
Water Districts
i.
The Impetus for District Formation
Water producers and users in a number of basins have created water organizations or
have had water district acts of existing districts amended in self-help efforts to manage
groundwater. Immediate problems of salt-water intrusion, critically-lowered water tables,
subsidence, and groundwater quality degradation have moved these groundwater basin users to
provide local districts with sufficient power and financial capability to respond to such problems.
***
b.
The Orange County Water District -- Basin Management Without Adjudication
i.
District Powers
The Orange County Water District (OCWD) has been a leader in district groundwater
management without adjudication. The range of powers and financing provisions in the Orange
County Water District Act illustrate what can be involved in a district approach to groundwater
management. The OCWD Act is a special district act. It was substantially amended in 1953, to
add the power to operate a replenishment program and to impose pump taxes on groundwater
extraction in the district. It has been amended several times since 1953, to add additional
management powers. OCWD powers include the powers itemized in Section 40-2(6) of the
OCWD Act:
For the common benefit of said district and for the purpose of replenishing,
regulating and protecting the ground water supplies within the district to:
(a) Store water in underground water basins or reservoirs within or outside of
said district;
(b) Appropriate and acquire water and water rights within or outside of said
district;
(c) Purchase and import water into said district;
(d) Conserve water within or outside of said district;
30
(e) Buy and to sell water at such rates as shall be determined by the board of
directors;
(f) Exchange water;
(g) Distribute water to persons in exchange for ceasing or reducing ground water
extractions;
(h) Transport, reclaim, purify, treat, inject, extract, or otherwise manage and
control water for the beneficial use of persons or property within the district and
to improve and protect the quality of the ground water supplies within the district;
(i) Fix the terms and conditions of any contract under which owners or operators
of water-producing facilities within the district may agree to use water from an
alternative nontributary source in lieu of ground water, and to such end the district
may become a party to such a contract and may pay from district funds such
portion of the cost of water from an alternate source as will encourage the
purchase and use of the same in lieu of producing ground water, as long as
persons or property within the district are directly or indirectly benefited by the
resulting replenishment; and
(j) Determine in the manner herein provided the amount and percentage of water
produced from the ground water supplies within the district to the total amount of
water produced within district by all persons and operators, including the total
amount of water from supplemental sources; require that persons and operators
produce more or less of their total water needs from the ground water within
district than the basin production percentage determined by district as provided
herein; levy a basin equity assessment on those persons and operators who are
required by district to produce, or have in fact produced more water from the
ground water within district; and to compensate other such persons and operators
who are directed by district to produce less than the basin production percentage
from ground water within district. . . .
The Act also provides for data collection by requiring the registration of “water producing
facilities” and periodic filing of “water production statements.”
ii. General Financing Provisions
Section 40-2 (12) of the Act adds that the district can "cause assessments and/or charges
to be levied as hereinafter provided to accomplish the purposes of this act." The OCWD has the
power to levy four different types of assessments: ad valorem taxes on all property owners;
replenishment assessments ("pump taxes") on all water pumped if the basin is overdrafted; a
replenishment assessment on all water pumped for all purposes other than irrigation where an
additional replenishment assessment is necessary for the protection of the water supply of the
district . . ."; and basin equity assessments. The OCWD was the first district to levy pump taxes
and it withstood a constitutional challenge to that power of taxation.
31
The OCWD Act declares that pump taxes are "in furtherance of district activities in the
protection of the water supplies . . . which are necessary for the public health, welfare and safety
of the people of this state." OCWD may levy and assess a pump tax only when it determines that
either a annual or accumulated overdraft exists in the basin. Pump taxes may levied on all
groundwater producing facilities in the district at a uniform rate per acre foot. The pump tax
proceeds must be used exclusively:
[T]o acquire water and to construct, purchase, lease or otherwise acquire, and to
operate and maintain necessary works, machinery, facilities, canals, conduits,
wells, pumping plants, water rights, spreading grounds, lands, rights and
privileges to replenish and protect the ground water supplies of said district.
The total annual pump tax that is levied may not exceed five dollars fifty cents per acre
foot and the total tax collected may not exceed the amount of money needed to purchase
replenishment water to eliminate annual accumulated overdraft. The "additional replenishment
assessment" can imposed on all non-irrigation groundwater production facilities if eight OCWD
directors determine that an additional pump tax is “necessary for the protection to the water
supply . . . and that the amount thereof is reasonable.”
iii. Basin Equity Assessments
OCWD's "basin equity assessments" and "production requirements and limitations" are
also declared in the Act to be "in furtherance of district activities in the protection of water
supplies . . . which are necessary public health, welfare and safety of the people of this state."
The function of OCWD's basin equity assessment is similar to the "pool" operated by the
watermaster service in the Central and West Basin. Both can be used to adjust the relative
amounts of groundwater and surface water that are used in the basin.
Under the exchange pool system, member pumpers with access to alternate surface water
supplies reduce pumping below the amount of their "adjudicate right" so that other pumpers
without surface water connections may pump more than their adjudicated right. Pumpers who
pump more than their adjudicated right pay the watermaster for the exchange pool water they
receive, and he in turn pays the parties who "released" water to the exchange pool.
Groundwater rights in the Orange County Basin have not been adjudicated and, unlike
the West Basin, each pumper does not have a set "adjudicated right" figure. The OCWD Board
of Directors makes a determination of the to amount of groundwater pumping that should be
allowed in the basin for each year.
The Board obtains a yearly report on the condition of groundwater supplies in the district;
groundwater production, use of supplemental sources, and the cost of each for the preceding
year, and information on the probable availability of supplemental sources for the following
year. On the basis of this information, and after notice and hearing, the Board may decide to set
a “basin production percentage,” which is a ratio of groundwater to be produced from the basin
32
to the expected total of all water use from groundwater production and supplemental sources.
The Board may decide to levy a basin equity assessment and to impose a "production
requirement or limitation" on district pumpers if "necessary for the protection of the water supply
of district.
When the OCWD Board sets a basin production percentage for a year, it is setting an
amount which it has determined is the maximum amount that should be extracted from the basin
for that year. Based on information concerning a pumper's pumping and use of supplemental
sources, a pumper's extraction is required to be a certain amount; the ratio of his groundwater
pumping to total water use may be either more or less than the basin production percentage for
the entire basin. If, for example, a pumper's production requirement is 90 percent (i.e., he must
take no more than 90 percent of the water he needs by pumping groundwater) and the basin
production percentage is 80 percent (i.e., of the total water use in the basin, groundwater can be
used to meet only 80 percent of those needs), the pumper must pay to the district:
[A]n amount-determined by the number of acre-feet of water which such person
or operator has produced from ground water within the district in excess of the
acre-foot equivalent of the basin production percentage multiplied by the
applicable basin equity assessment rate.
Correspondingly, a pumper whose production is limited to less than the basin production
percentage is paid by the district out of the basin equity assessment fund. The district must use
the proceeds from the basin equity assessments “to equalize the cost of water to all persons and
operators within the district.”
The OCWD can use these financing measures to regulate total groundwater extraction in
the basin without having adjudicated groundwater rights. In the OCWD, groundwater pumpers
have no cost advantages based on historic use; old pumpers pay at the same rate as new pumpers.
Only agricultural uses have a price advantage.
***
c.
The Central and West Basin Water Replenishment District--District Management
in an Adjudicated Basin
The interrelationship of districts and adjudications in the West and Central Basins of
Southern California illustrates another type of district-based management solution that has been
developed. In 1945, an adjudication of the West Basin was begun. The basin was overdrafted
and threatened by permanent damage from salt water intrusion. The trial court referred the
matter to the predecessor of the State Water Resources Control Board for a determination of the
facts. In 1961, the court issued a judgment based on agreement and stipulation by owners of
more than 80 percent of pumping rights. The judgment allocated the groundwater, set up an
exchange pool, reserved jurisdiction, and continued court supervision through a watermaster, the
Department of Water Resources.
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The court's order was upheld on appeal.2 The Court of Appeal expressly affirmed the
lower court's determination:
[T]here was no necessity for distinguishing between the overlying users and
appropriators. The object of the judgment was to relieve the overdraft and
prevent salt water intrusion.3
Supplemental surface water was available to make the court's physical solution, the watermasterrun exchange pool, workable, since the West Basin Municipal Water District had joined the
Metropolitan Water District of Southern California in 1948.
The West Basin is downstream from the Central Basin. Overdraft in the Central Basin
aggravated the West Basin's problems. The Central Basin Municipal Water District was formed
in 1952, and was annexed to the Metropolitan Water District of Southern California in 1954.
The availability of supplemental surface water did not ease the Central Basin overdraft. One
commentator compared the situation in the West Basin to the situation in the Central Basin:
The West Basin has operated for several years under court approved curtailment of
pumping. Only 30% of the water used in West Basin is supplied by wells, 70% is
furnished by the Metropolitan Water District, and this has helped stabilize water levels.
Pumping in Central Basin is unrestricted and 83% of the water used there is produced
from wells, while only 17% is furnished by Metropolitan.
2
California Water Service Co. v. Sidebotham & Son, 224 Cal. App. 2d 715,
37 Cal. Rptr. 1 (1964).
3
Id. at 731, 37 Cal. Rptr. at 10.
34
There are 37 service connections to The Metropolitan Water District system in Central
Basin having a total capacity of 530 second feet. They are seldom used because
producers are not willing to reduce pumping in an area where no legal action has been
taken to adjudicate water rights. They know that under the decision in the Raymond
Basin case, the more water a producer pumps, the greater his right becomes, and that if he
reduces his pumping, his water right could be proportionately impaired.
In an effort to control Central Basin pumping, the Central and West Basin Water
Replenishment District (CWBWRD) was formed in 1959, under the general act. The
CWBWRD has replenishment and pump tax powers and the CWBWRD boundaries conform to
the boundaries of the two basins.
In 1961, the CWBWRD began an adjudication of the Central Basin in order to control
pumping there to the same extent as in the West Basin. Based on agreement and stipulation by
owners of "over 75 percent of the Assumed Relative Rights within the Basin," the court issued
an interim order in 1961, which controlled basin pumping and appointed the Department of
Water Resources as watermaster. The court entered a final judgment in 1965, again pursuant to
an agreement and stipulation by the parties, and after only one week of trial.
In the West and Central Basins, the court-appointed watermasters cooperate closely with
the CWBWRD. While the watermaster administers the exchange pools in the two basins based
on data it collects cooperatively with CWBWRD, CWBWRD carries on several replenishment
and salt water intrusion barrier programs.
One program is an "in-lieu replenishment" program in which CWBWRD contracts with
pumpers who have access to supplemental water to use that water instead of pumping
groundwater. CWBWRD can use this program to:
Alter pumping patterns within a ground water basin; replenish areas of low
transmissibility where conventional recharge techniques are ineffective; heighten
the effect of injecting water to form a sea-water barrier by reducing extractions in
the vicinity; reduce the amount of replenishment water purchased by CWBWRD;
and reduce the annual ground water extraction from a ground water basin.
Pumping is not limited to safe yield in either the West or Central Basins. The CWBWRD
Act provides:
[F]ollowing a final adjudication of all or substantially all of the rights to extract
ground water and a determination of the natural safe yield of the ground water
supplies within the district, and a determination of the amount or extent to which
the rights to extract ground water so adjudicated may be exercised without
exceeding the natural safe yield of such ground water supplies, the board of such
district shall recognize such judicial determination by exempting from
replenishment assessments the amount of water pumped by each person whose
rights have been so adjudicated which does not exceed his proportionate share of
the natural safe yield.
35
Since safe yield figures have not been set for the basins, the pump tax is a gross pump tax
that is applied to all pumping. Use of a gross pump tax lessens the economic advantage of
adjudicated rights within the safe yield.
d. Watermaster Management
The concept of using a watermaster as a managing agency, pursuant to a stipulated
adjudication, has been considered in several situations. The judgment in Upper San Gabriel
Valley Municipal Water District v. City of Alhambra (San Gabriel) and the stipulation for
judgment in Chino Basin Municipal Water District v. City of Chino (Chino Basin) illustrate a
type of solution that is now being developed.
The watermaster established by the stipulated judgment in the San Gabriel case is
composed of nine members appointed by the court, of whom six are nominated by groundwater
pumpers and three by the two main water districts in the basin. The powers and duties of the San
Gabriel watermaster are much more extensive than those of the Department of Water Resources
in the West and Central Basins; in those basins, the watermaster primarily has a record-collecting
and accounting function. In the San Gabriel Basin, the water-master is a policy maker:
The watermaster is no longer simply an inventory-taking agency, although he
does have an inventory function. His most important function now is that of the
discretionary management of the basin . . . . In reality, this nine-man watermaster
committee is a 'board of directors' of a semi-political agency created under the
auspices of the court in the adjudication proceeding.
The San Gabriel judgment gave the watermaster "broad discretion." Perhaps the most
significant aspect of the watermaster's discretion is the fact that the watermaster is in charge of
determining the "operating safe yield" of the basin each year.4 “Operating safe yield” is different
than “natural safe yield.”5 Setting the "operating safe yield" figure each year has a significant
economic impact on basin pumpers because only water pumped in excess of a pumper's share of
the "operating safe yield" is subject to assessment by the watermaster.
4
* * * "Operating safe yield" is defined (Id. at 4) as: The quantity of water which the
Watermaster determines hereunder may be pumped from the Basin in a particular fiscal year,
free of the replacement water assessment under the Physical Solution herein.
5
"Natural safe yield" is defined in the San Gabriel Case as:
The quantity of natural water supply which can be extracted
annually from the Basin under conditions of long term average
annual supply, net of the requirement to meet downstream rights as
determined in the Long Beach Case (exclusive of pumped export),
and under cultural conditions as of a particular year.
36
Additional watermaster powers include the power to levy assessments, to purchase and
recharge with supplemental water, and the power to control the use of basin storage space
through “cyclic storage agreements.”6 The judgment expressly states that the watermaster has
“sole custody and control of all ground water storage rights in the Basin pursuant to the Physical
Solution herein, and subject to review of the Court.”
6
Cyclic Storage Agreements. To enter into appropriate contracts, to be approved by the
Court, for utilization of ground water storage capacity of the Basin for cyclic or regulatory
storage of supplemental water by parties and nonparties, for subsequent recovery or Watermaster
credit by the storing entity, pursuant to uniform rules and conditions, which shall include
provision for: (1) Watermaster control of all spreading or injection and extraction scheduling and
procedures for such stored water; (2) calculation by Watermaster of any special costs, damages
or burdens resulting from such operations; (3) determination by Watermaster of, and accounting
for, all losses in stored water, assuming that such stored water floats on top of the ground water
supplies, and accounting for all losses of water which otherwise would have replenished the
Basin, with priorities being established as between two or more such contractors giving
preference to parties over nonparties; and (4) payment to Watermaster for the benefit of the
parties hereto of all special costs, damages or burdens incurred (without any charge, rent,
assessment or expense as to parties hereto by reason of the adjudicated proprietary character of
said storage rights, nor credit or offset for benefits resulting from such storage); provided, that no
party shall have any direct interest in or control over such contracts or the operation thereof by
reason of the adjudicated right of such party, the Watermaster having sole custody and control of
all ground water storage rights in the Basin pursuant to the Physical Solution herein, and subject
to review of the Court.
37