6

bor's use. It is the taking of more than one's share, to the injury of other overlying lands, that is subject to injunction."

Whether a use, resulting in damage to another's reasonable use, is unreasonable and therefore enjoinable, is a question of fact in each case. In Katz v. Walkinshaw, it was alleged, and admitted, that the plaintiffs' trees, vines, and other vegetation of value would perish, and that the plaintiffs would be greatly and irreparably injured, if the defendant was allowed to divert the water to distant lands. In Newport v. Temescal Water Co., where the lands of the owner complaining of a diversion by others to distant points, were shown to be of little agricultural value, and the drop in water table was due substantially to periods of drought and pumping by plaintiffs, defendant, and third parties, it was held that plaintiffs had failed to establish any ground for relief under the principles of the Katz decision. Damages might have been awarded, but plaintiffs asked only for a permanent injunction, which was denied. If there is sufficient water for all claimants at the time of the action, injunctive relief will not be granted against a taker to distant lands, in favor of another appropriator of ground waters; the situation being substantially the same as that of several appropriators from a surface stream having more than enough water for all. A gradual material lowering of the water level, in spite of the bringing in of additional supplies from outside, thus seriously interfering with reasonable, beneficial use by owners of overlying lands, was ground for issuing an injunction against pumping water out of the basin, in Corona Foothill Lemon Co. v. Lillibridge, supra.10

Where development is made for public use at great expense, and without objection by owners of overlying land, the latter are estopped to obtain an injunction and are relegated to an action for such damages as they can prove."

The measure of damages for unreasonable diversion of ground water has been held to be the difference in value of the land before diversion and the value if permanently deprived of the water so diverted.12 The value of crops taken from the land is merely evidence of the reasonable value of the land.13

Where the landowner is not making present use of the water, and therefore can show only prospective damage, he is not entitled to a permanent injunction until he begins to make use of the water. But he has a right to the quantity of water necessary for his land, whether he uses it or not; therefore he is entitled to immediate relief to prevent destruction of or danger to the source of supply and to prevent the acquisition of rights by adverse use. In the Burr case an injunction was issued against a taking to distant lands which interfered with plaintiff's actual present use, and plaintiff's right to begin use on his other lands was protected by a declaratory judgment. In the meantime defendant was permitted to export the surplus above present needs plus the quantity required for annual recharge.

Cohen v. La Canada Land & Water Co. (second appeal) (151 Calif. 680, 91 Pac. 584 (1907)). Anaheim Union Water Co. v. Fuller (150 Calif. 327, 88 Pac. 978 (1907)).

8 149 Calif. 531, 87 Pac. 372 (1906).

San Bernardino v. Riverside (186 Calif. 7, 198 Pac. 784 (1921)).

10 8 Calif. (2d) 522, 66 Pac. (2d) 443 (1937).

11 Katz v. Walkinshaw (141 Calif. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903)); Barton v. Riverside Water Co. (155 Calif. 509, 101 Pac. 790 (1909)).

12 De Freitas v. Suisun (170 Calif. 263, 149 Pac. 553 (1915)).

13 Revis v. Chapman & Co. (130 Calif. App. 109, 19 Pac. (2d) 511 (1933)).

The fact that the owner of overlying lands may secure protection by a declaratory decree pending his making eventual use, and that the court may regulate and apportion uses of percolating water in accordance with relative rights, has been consistently recognized.14

APPLICATION OF THE RULE OF REASONABLENESS TO ALL USES OF WATER

The Constitutional Amendment of 1928, as Upheld by the Court, Brings All Water Uses Under the Rule of Reasonableness

The principle was stated in Miller v. Bay Cities Water Co.,15 that as against a taker of ground water for use off his own land, there is no question of reasonableness on the part of owners who make use on their overlying lands. Hence the owners of lands away from a surface stream, but overlying strata fed by the stream flow, were held entitled to enjoin the diversion of any part of the stream waters-whether ordinary flow or annual flood flow-so long as the flow was necessary to bring the strata to their water-bearing capacity. This was held to serve a useful purpose in keeping the ground water under pressure and maintaining the subterranean water level.

The foregoing rule no longer obtains in California, in view of the constitutional amendment of 1928, declaring that the right to water from any natural watercourse "shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water." In Peabody v. Vallejo,16 the court stated:

Notwithstanding the common-law rule to the contrary, this court, in the cases referred to, accorded to the underlying and percolating water right a status analogous to the riparian right. The attitude of some of the plaintiffs herein in effect is that, possessing that status, they are entitled to have the underground waters flow and percolate as in a state of nature regardless of the quantity of the supply or the reasonableness of use. But since the riparian right as against an appropriator has by the new state policy been subjected to the doctrine of reasonable use, no good reason has been advanced why the asserted underground and percolating water right should not be subjected to the same regulation as against an appropriator. In whatever respects the Miller case, or any other case, may be said to hold otherwise, they must be deemed to yield to the new constitutional policy with reference to the use of the waters of the state.

Reversing the spirit of the Miller decision, it was further stated: Some of the plaintiffs assert the right to the full flood and freshet flow of the stream to press water into their riparian lands as an aid in maintaining the level of the underground water supply. This is not strictly a riparian right at common law, but it cannot be said that under some circumstances such right is not a substantial right conferred by nature, to be enjoyed subject to the test of reasonable use. It would seem to be obvious that the use of an entire flood and freshet flow of a stream to press a small amount of water into adjoining lands would be an unreasonable use of the waters of the stream, especially when otherwise there is no appreciable lowering of the water table due to nature's processes or to artificial regulation of the stream flow. * * * There is now no room for a distinction between the so-called pressure right and the overlying land owner's right, whether the latter be founded on a strictly percolating water right or a right in an underground stream. Each, however, is a paramount right subject to the test of reasonable use.

14 Burr v. Maclay Rancho Water Co. (154 Calif. 428, 98 Pac. 260 (1908); second appeal, 160 Calif. 268, 116 Pac. 715 (1911)); San Bernardino v. Riverside (186 Calif. 7, 198 Pac. 784 (1921)); Peabody v. Vallejo (2 Calif. (2d) 351, 40 Pac. (2d) 486 (1935)): Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (3 Calif. (2d) 489, 45 Pac. (2d) 972 (1935)).

15 157 Calif. 256. 107 Pac. 115 (1910).

18 2 Calif. (2d) 351, 40 Pac. (2d) 486 (1935).

One of the conclusions was:

We therefore conclude: 1. That the rule of reasonable use as enjoined by section 3 of article XIV of the Constitution applies to all water rights enjoyed or asserted in this state, whether the same be grounded on the riparian right or the right, analogous to the riparian right, of the overlying land owner, or the percolating water right, or the appropriative right.

The principle was affirmed in Tulare Irrigation District v. LindsayStrathmore Irrigation District," where an extensive area of delta land was supplied by percolation from a surface stream. The exact amount of reasonable use by riparian and overlying landowners must be specified. While the burden of proving that there is a surplus is upon the party seeking to pump water for use outside the watershed, such burden does not arise until after the opposing parties have proved the amount necessary for their beneficial use. In the foregoing cases, the court undertook to protect the future needs of owners of overlying and riparian land by declaratory decrees.

The very recent Lodi case 18 applies the principle as between appropriators, for municipal use, of ground water in an area supplied solely by percolation from a surface stream, and appropriators on the stream, where the ground-water appropriators had been making reasonable, beneficial use.

In a decision rendered in 1938 19 it was stated that the owners of overlying land have the right to the use of the ground waters as a supporting subterranean supply available to and for the benefit of their farming operations, such as would result from minimizing the requirements for surface irrigation, and that "it may not be rightly said that such use is not a beneficial use of the underground waters." However, an injunctive order requiring the maintenance of the ground-water table in its natural state and in effect preventing the beneficial utilization of water underlying 98 percent of the area in order that the water table be maintained in natural condition underneath 2 percent of the area, was reversed to conform to the new State policy. A physical solution was approved as to certain holdings; as to the others, as public use had attached, reverse condemnation proceedings were invoked and applied as the only appropriate course to pursue.

20

The most recent decision rendered on the subject (July 1938) 2o holds that whether the use of underground basins simply to support a surface stream, thereby making it possible for a riparian owner to water his cattle without extracting ground waters artificially, is or is not a reasonable, beneficial use, is a question of fact that must be passed upon in each case.

All Rights to Waters, Surface and Subterranean, Which Form Part of a Common
Supply, Are Correlated, Subject to the Rule of Reasonable Use

The effect of the decisions, beginning at least with Hudson v. Dailey,21 and continuing to the present time, is to correlate the rights to all waters which form a common source of supply. Thus the waters of a surface stream, the ground waters which constitute the underflow, and the ground waters which feed the stream and those which flow

17 3 Calif. (2d) 489, 45 Pac. (2d) 972 (1935).

18 Lodi v. East Bay Municipal Utility Dist. (7 Calif. (2d) 316, 60 Pac. (2d) 439 (1936)). 19 Hillside Water Co. v. Los Angeles (10 Calif. (2d) 677, 76 Pac. (2d) 681 (1938)).

20 Rancho Santa Margarita v. Vail (11 Calif. (2d) 501, 81 Pac. (2d) 533 (1938)). 21 156 Calif. 617, 105 Pac. 748 (1909).

+

from it, so far as they can be identified by competent evidence, are treated as one source of supply for all users who have access to it.

The common-law doctrines of ownership by owners of riparian and overlying lands, as modified by court decisions, form the basis of titles to such waters. Superimposed upon this basis is the doctrine of prior appropriation, which applies to any surplus above the needs of the landowners, whose rights are paramount; the statutory procedure for acquisition of appropriative rights, however, being confined to waters in definite streams, surface and subterranean. Modifying the basis also are the rules governing acquisition of rights by prescription. And governing the exercise of all water rights, of whatever character, is the new constitutional policy of reasonable use.

The Court Has Power To Adopt and Enforce a Physical Solution, Regardless of whether the Parties Agree, and thus To Protect the Rights of a Senior Appropriator of Ground Waters without at the Same Time Nullifying Development by a Junior Appropriator; any Major Expense Involved in the Solution To Be Borne by the Junior Appropriator

While existing rights are entitled to full protection, it is necessary that such protection be so extended as to afford real conservation of water. The physical situations in cases involving interconnected surface and ground waters are usually, of necessity, very complicated. In a given case, conservation may be achieved by some method other than simply requiring the water to reach, by natural means, the parties entitled to use it. According to the recent Lodi case,2 22 the court has power to adopt and enforce a physical solution even if the parties cannot agree upon one. It was stated:

Other suggestions as to possible physical solutions were made during the trial. The trial court apparently took the view that none of them could be enforced by it unless the interested parties both agreed thereto. That is not the law. Since the adoption of the 1928 constitutional amendment, it is not only within the power but it is also the duty of the trial court to admit evidence relating to possible phyical solutions, and if none is satisfactory to it to suggest on its own motion such physical solution. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, p. 574.) The court possesses the power to enforce such solution regardless of whether the parties agree. If the trial court desires competent expert evidence on this or any other problem connected with the case, it possesses the power to refer the matter to the division of water rights of the board of public works, or to appoint it as an expert.

However, if the physical solution to be adopted should require the city to change its method of appropriation, any major expense should be borne by the district. The city, being the prior appropriator, should not be subjected to any substantial expense to accommodate the junior appropriator. It was stated:

Although the prior appropriator may be required to make minor changes in its method of appropriation in order to render available water for subsequent appropriators, it cannot be compelled to make major changes or to incur substantial expense.

Thus while the solution should be aimed at the greatest possible utilization of the State's water resources, the prior appropriator is protected in a reasonable, beneficial use of water and a reasonable method of diversion.

22 Lodi v. East Bay Municipal Utility Dist. (7 Calif. 2d) 316, 60 Pac. (2d) 439 (1936)).

The Question of Apportionment between Landowners in Event of Insufficiency of Water Supply

The decisions establishing and developing the doctrine of correlative rights have involved, in most cases, the protection of an owner of overlying land against export of water which resulted or threatened to result in injury to his ground-water supply. In a recent article by Thompson and Fiedler, of the United States Geological Survey, the following statement appears:

23

The present writers know of no instance in any state following the doctrine of correlative rights where the doctrine has been applied to adjudicate and divide the water of any ground-water basin among numerous land owners. This belief is supported by Everett N. Bryan, acting deputy in charge of water rights, Division of Water Resources, California Department of Public Works, who, in reply to our inquiry, has recently stated: "Attorneys for the Division advise me that from a reasonable search, no case in any state following the correlative rights doctrine is to be found involving the entire adjudication of the various rights of overlying lands within a basin."

None of the decisions reviewed in the course of the present study have involved adjudications of rights of all landowners in a ground-water basin; but a comprehensive determination of rights within the Raymond Basin area, in southern California, is now in progress, upon reference to the State division of water resources by the superior court for Los Angeles County in the case of Pasadena v. Alhambra.

Unquestionably the California courts have adequate power to make and enforce a complete adjudication of rights within a ground-water basin, should it be sought in a proper proceeding in which all landowners and other users of water are made parties. The foregoing discussion has shown that the supreme court has repeatedly emphasized the power to regulate and apportion uses of such water, and to protect, by declaratory decrees and continuing jurisdiction, the right of landowners to exercise their correlative prerogatives when they should see fit to do so. The only limitations upon this regulatory power that are apparent, are that it shall result in equity to all holders of rights to the common water supply, and that it shall conform to the constitutional mandate that the State's water resources be put to the greatest possible beneficial use.

5. Artesian Waters

IN DETERMINING WATER TITLES, ARTESIAN WATERS ARE NOT CLASSIFIED SEPARATELY FROM OTHER GROUND WATERS

Whether waters are artesian or not, makes no difference so far as the title of the claimant to their use is concerned. In some of the cases the waters were under artesian head and in others they were not. The principles have developed without regard to this feature.

THE STATUTORY REGULATION OF ARTESIAN WELLS HAS BEEN UPHELD AS A VALID EXERCISE OF THE STATE POLICE POWER

Statutory regulation of artesian wells is designed to prevent waste and thus serve the public welfare. It has no bearing upon the relative rights of individual owners of wells, except to prevent each one from

23 Thompson, David G., and Fiedler, Albert G., Some Problems Relating to Legal Control of Use of Ground Waters, Journal American Water Works Association, Vol. 30, No. 7, July 1938, p. 1066.