Title: Tulare Irr. Dist. et al (Wright et al, Interveners), v. Lindsay-Strathmore Irr. Dist. v. Consolidated People's Ditch
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 Material Information
Title: Tulare Irr. Dist. et al (Wright et al, Interveners), v. Lindsay-Strathmore Irr. Dist. v. Consolidated People's Ditch
Physical Description: Book
Language: English
Publisher: 45 Pacific Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Tulare Irr. Dist. et al (Wright et al, Interveners), v. Lindsay-Strathmore Irr. Dist. v. Consolidated People's Ditch (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004416
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text




45 PACIFIC REPORTER, 2d SERIES


traveled portion is only 8 or 10 feet wide,
that it must be confined to that limit with-
out taking into consideration that testimony
which says that vehicles can and have
passed each other along the road. This is
a matter which belongs especially to the
trial court, and we should not attempt in
view of the showing here to overthrow it.
The judgment should be, and it is, af-
firmed.

We concur: WASTE, C. J.; SHENK,
J.; CURTIS, J.


TULARE IRR. DIST. et al. (WRIGHT et al.,
Interveners), v. LINDSAY-STRATH-
MORE IRR. DIST.

LINDSAY-STRATHMORE IRR. DIST. v.
CONSOLIDATED PEOPLE'S DITCH
CO.
Sac. 4041.

Supreme Court of California.
May 3, i935.

Rehearing Denied May 29, 1935.

I. Waters and water courses -=144
Constitution held to apply doctrine of
reasonable beneficial use of water as between
appropriators and riparian as well as overly-
ing landowners (Const. art. 14, 3, adopted
Nov. 6, 1928).

2. Waters and water courses G=152(10)
In action by riparian or overlying land-
owners to enjoin appropriator, trial court
must determine whether plaintiffs' use of
water is reasonable and beneficial and wheth-
er surplus exists, and must fix quantity re-
quired by each plaintiff (Const. art. 14, 3,
adopted Nov. 6, 1928).

3. Waters and water courses <:=144
Constitution held to protect riparian
owner's prospective as well as actual reason-
able beneficial uses as against appropriator
(Const. art 14, 3, adopted Nov. 6, 1928).

4. Waters and water courses :0144
Use by riparian owners of entire flow of
river for subirrigation held not reasonable
use as against appropriator (Const. art. 14,
3, adopted Nov. 6, 1928).


5. Appeal and error G 1107
In action to enjoin appropriation, consti-
tutional amendment allowing only reasonable
beneficial use of water held applicable al-
though not adopted until after appeal was
perfected (Coast. art. 14, 3, adopted Nov.
6, 1928).

6. Appeal and error =1 107
On appeals involving injunction decrees,
law prevailing when appellate court renders
its opinion is applicable.

7. Constitutional law C=211, 278(1)
Waters and water courses 0-!28
Constitutional amendment passed under
police power and allowing riparian or over-
lying landowners only reasonable beneficial
use of water as against appropriator held not
violative of due process or equal protection
clauses of Federal Constitution (Const. Cal.
art. 14, 3, adopted Nov. 6, 1928; Const. U.
S. Amend. 14).

8. Constitutional law 0=81
Conservation of natural resources of
state is in general welfare and serves public
purpose, and hence constitutes reasonable ex-
ercise of police power.

9. Waters and water courses 0 128
Statute providing that ten years' nonuse
of riparian right constitutes abandonment
thereof held unconstitutional in view of con-
stitutional amendment protecting future as
well as present reasonable beneficial use of
water by riparian owner as against appro-
priator (St. 1919, p. 513, 11; Const. art. 14,
3, adopted Nov. 6, 1928).

10. Eminent domain 0293(2)
In action by riparian owners and others
to enjoin appropriation by irrigation district,
district held entitled by means of inverse con-
demnationi, without resort to statute, to con-
demn excess over reasonable beneficial needs,
or even entire riparian right, of impleaded
riparians who first became parties to action
after public use had attached in district's fa-
vor, and also to condemn prospective reason-
able beneficial uses by original riparian
plaintiffs (Code Civ. Proc. 534).

II. Eminent domain 293(2)
Doctrine of inverse condemnation where
riparian owner brings action to enjoin water
appropriator, such as irrigation district, ap-
plies only where public use has attached.

12. Waters and water courses C Appropriator has burden of showing sur-
plus from which water may be taken without
injuring prior rights.

13. Waters and water courses As against new appropriator, riparian
owners and prior appropriators have burden


4;pFor other cases see same topic and KEY NUMIIER in ali Key Number Digests and Indexes


-------------~11111111 r II


~4ia --I


972 CaL








TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


of proving that their use of water is reason-
able and beneficial (Const. art. 14, 3, adopt-
ed Nov. 6, 1928).

14. Waters and water courses =&152(3)
Where riparian owners and others seek-
ing to enjoin appropriation by irrigation dis-
trict seasonably brought action before dis-
trict began constructing system and before
public use attached, plaintiffs, who diligently
prosecuted action, held not barred from in-
junction because not seeking preliminary in-
junction until several years after public use
had attached.

15. Waters and water courses =152(3)
Ordinarily, filing of injunction action, as
by riparian owner against irrigation district
appropriating water, before district has be-
gun work will prevent public use from attach-
ing whether or not preliminary injunction is
requested when action is filed.

16. Waters and water courses 0=-152(II)
Findings that appropriators were enti-
tled to certain number of second feet of wa-
ter held, when read as.whole, to award maxi-
mum rate of flow, and not continuous flow, as
contended.

17. Waters and water courses 0-152(11)
Whenever possible, quantity of water to
which each appropriator is entitled should be
fixed with certainty.

18. Waters and water courses =152(12)
Where flow of river was highly variable,
awarding water to appropriators in second
feet held not reversible error, although on
retrial award should preferably be made in
second feet with ultimate limitation in acre
feet.

19. Waters and water courses ==143
Appropriator is entitled, as against sub-
sequent appropriator, to continued flow to
head of ditch of quantity of water which,
whenever present, has been reasonably di-
verted by him for beneficial uses, plus rea-
sonable conveyance loss (Const. art. 14, 3,
adopted Nov. 6, 1928).

20. Waters and water courses -~144
Excessive diversion of water cannot be
deemed diversion for beneficial use, and
hence is taking without right and confers no
title on subsequent as against prior appropri-
ator no matter how long continued (Const.
art. 14, 3, adopted Nov. 6, 1928).

21. Waters and water courses '-144
In determining reasonable quantity of
water for beneficial use of appropriator as
against subsequent appropriator, policy of
state is to require within reasonable limits
greatest duty from state's waters.


22. Waters and water courses C-144
Appropriator is entitled as against sub-
sequent appropriator to use water reasonably
according to custom of locality unless involv-
ing unnecessary waste, and cannot be com-
pelled to divert according to most scientific
method.

23. Waters and water courses i=152(I)
Appropriator's action to enjoin subse-
quent appropriator is in effect one to quiet
title of prior appropriator, who has burden
of proving by preponderance of evidence
every element of right claimed.

24. Waters and water courses S=>152(6)
Appropriator's long continued use of
definite quantity of water may raise pre-
sumption as against subsequent appropriator
that use was necessary.

25. Waters and water courses 0152(6)
Where appropriator seeking to enjoin
subsequent appropriator satisfies burden of
showing that past use of water was reason-
ably necessary, burden shifts to subsequent
appropriator to show surplus by preponder-
ance of evidence.

26. Waters and water courses C=152(2)
In appropriators' action to enjoin sub-
sequent appropriator, each plaintiff must re-
cover on strength of evidence of his own title
and not on weakness of defendant's title.

27. Waters and water courses s=152(8)
In appropriators' action to enjoin subse-
quent appropriator, evidence held insufficient
to sustain findings that during particular pe-
riod of each year plaintiffs as group divert-
ed designated quantity of water and all lessor
flows when available, or that quantity divert-
ed was beneficially used, or that each plain-
tiff diverted for reasonable beneficial uses
specific quantity of water awarded.
Evidence showed, as regards some of
ditches of plaintiff appropriators, that
when water was present it was used, but
not how much was used; that water was
not often present, especially from Octo-
ber to January; that some ditches never
had any winter water; and that some ap-
propriators could use more water if they
had it.

28. Waters and water courses 8=152(6)
In appropriators' injunction action, sub-
sequent appropriator did not, as contended,
have burden of proving that plaintiffs had
abandoned water for particular months of
each year.

29. Waters and water courses C0101
Irrigation district owning land consti-
tuting natural underground reservoir held en-
titled to extract water therefrom and to con-


=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes


C-H -


Cal. 9J7









45 PACIFIC REPORTER, 2d SERIES


vey it to distant lands for beneficial use with-
in district, unless injuring prior rights.

30. Waters and water courses 4=142
In action to enjoin subsequent appropri-
ator, none of plaintiff appropriators, if clos-
ing headgate for several weeks each year,
should be awarded any water during any
period when not using it.

31. Waters and water courses =>144
Water used by appropriators during win-
ter, in so far as used solely to kill gophers,
squirrels, etc., held not devoted to beneficial
use so as to confer rights as against subse-
quent appropriator.
32. Waters and water courses -142
Appropriators, if beneficially using dur-
ing winter definite quantity of water when
present, held entitled to be protected as
against subsequent appropriator even though
winter water was produced by infrequent
rains and hence could not be estimated with
certainty.

33. Waters and water courses =148
Appropriators in area about two-thirds
of which was devoted to annual crops, and
where most dependable supply from river
was from spring run-off of mountain snows,
held entitled to be protected, as against subse-
quent appropriator, in amount previously rea-
sonably diverted, when present, for beneficial
uses, as against contention that in any wa-
tershed where lands are surface irrigated,
any diversion exceeding average yearly run-
off, less margin of safety, can never be put
to beneficial use.

34. Waters and water courses =1441/2
SAppropriators held entitled as matter of
law, as against subsequent appropriator, to
divert by earthen ditches, and could not be
compelled to build new diversion system, not-
withstanding uneconomic paralleling of some
of ditches; appropriators not constituting
unit.

35. Waters and water courses 4144V/2
Appropriator is not compelled as against
subsequent appropriator to irrigate in most
scientific manner.

36. Equity e=I
Equity courts possess broad powers and
should exercise them to do substantial jus-
tice.

37. Waters and water courses e@152(1I)
In appropriators' actions to enjoin sub-
sequent appropriator, court is not limited to
parties' suggestions or offers in working out
physical solution, as in effecting more eco-
nomic diversion or use of water, and court
may make injunction subject to conditions
which court suggests, and apportion cost as


justice may require, having regard to fact
that prior appropriators may not be requir-
ed to incur any material expense to accommo-
date subsequent appropriator.
38. Waters and water courses eI150
In appropriators' action to enjoin sub-
sequent appropriator, whose pumping of un-
derground waters allegedly caused lowering
of underground water table, defendant's offer
to construct impervious by-pass carrying
some of waters of river over cone of depres-
sion created by pumping held inadequate be-
cause not covering entire cone nor providing
properly for injury to certain diversion ditch-
es, and because disregarding induced seep-
age.

39. Waters and water courses e@152(11)
In actions to determine water rights,
court in working out physical solution may
properly avail itself of facilities of state wa-
ter commission under statute (St. 1931, p.
2421, 24).

40. Waters and water courses e=152(6)
In appropriators' action to enjoin sub-
sequent appropriator, each plaintiff had bur-
den of proving times when water was actual-
ly diverted by such appropriator.

On Petition for Rehearing.
41. Appeal and error @- 1178(6)
Where plaintiffs' evidence overwhelming-
ly supported certain findings, appellate court
should not require plaintiffs to re-establish
matters covered thereby, and hence should
limit new trial so as to exclude such matters,
and could properly affirm portions of judg-
ment based on findings so supported.


In Bank.
Appeal from Superior Court, Tulare
County; Albert Lee Stephens, Judge.
Action by the Tulare Irrigation Dis-
trict, "the Consolidated People's Ditch
Company, the Elk Bayou Ditch Company,
and others, wherein H. E. Wright and
others intervened, against the Lindsay-
Strathmore Irrigation District, which filed
a cross-complaint against the named plain-
tiffs other than the plaintiff first named.
From an adverse judgment, defendant ap-
peals.
Modified in part, affirmed in part, re-
versed in part, and remanded with direc-
tions.
Sloss & Ackerman, Sloss & Turner, and
Sloss, Turner & Finney, all of San Fran-
cisco, Power & McFadzean and Power,
McFadzean & Crowe, all of Visalia, W:


48=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes



i]

qll~~ y L-


974 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


G. Irving, of Riverside, and Guy Knupp,
of Los Angeles, for appellant.
W. R. Bailey and Farnsworth, Burke &
Maddox, all of Visalia, W.' A. Gray, H.
Scott Jacobs, of Hanford, and Marietta R.
Gray, for respondents.

WASTE, Chief Justice.
This action was instituted by the various
plaintiffs to quiet their title as against de-
fendant to the surface and underground
waters of the Kaweah delta and to en-
omn the detendant, the Lindsay-Strath-
more irrigation District, from pumping
any of the water from the underground
waters of the delta and transporting the
same out of the Kaweah watershed to
lands within the defendant district. Aft-
er a protracted trial, judgment was en-
tered in favor of all of the plaintiffs and
interveners enioining the defendant from
pumping any water from the underground
waters of the delta and transporting the
same to the lands of defendant district,
and likewise enioining the defendant from
taking, diverting, or carrying away from
the Kaweah river, or any of its branches,
any quantity of water whatsoever, except
that required by defendant for riparian
purposes on its riparian lands located with-
in the delta. Contemporaneously with the
entering of its judgment, the trial court
suspended the operation of the injunction,
subject to certain conditions, pending the
appeal.
The litigation here involved has been of
long duration. The original complaint
was filed on July 15, 1916. After issue
was joined, a trial was had before Judge
Wallace, sitting as a trial judge in Tulare
county. After Judge Wallace had signed
and filed his decision in writing (in favor
of plaintiffs), defendant raised the objec-
tion that the trial judge was disqualified
because of interest. In Lindsay-Strath-
more Irrigation District v. Superior Court,
182 Cal. 315, 187 P. 1056, the contentions
of petitioner there (defendant here) were
sustained, and a writ of prohibition was
issued restraining Judge Wallace from
taking any further action in the case, and
ordering a new trial. The case again pro-
ceeded to trial, this time before Judge
Albert Lee Stephens. During the course
of this trial, consuming over 200 court
days, a reporter's transcript of 56 volumes,
containing 26,936 pages, was compiled, and
some 678 exhibits were introduced. The
findings of fact and conclusions of law,


Cal. 975


covering 236 pages of the clerk's tran-
script, were filed May 16, 1925, and judg-
ment was thereafter rendered on April 13,
1926, in favor of plaintiffs and interven-
ers. Counsel consumed over five years
in the preparation of briefs, which, with-
out their accompanying supplements, total
1,957 pages. Now, some 18 years after
the action was commenced, the case comes
before this court for the first time on its
merits.
The case was rendered very complex
for the reason that respondents are many
in number and own. or claim to own. a
variety of water rights on approximately
200,000 acres of land. Some of the re-
spondents are appropriators, some are rip-
arian owners, and some are owners of
overlying land, owning or claiming to own
underground water rights. Sixteen of the
respondents are corporations distributing
appropriated water to their hundreds of
stockholders; 1 respondent is an irriga-
tion district, also distributing appropriated
water to its landowners; 30 are individual
appropriators, alleged to hold rights in
the water as tenants in common; and 13
claim both as riparian owners and overly-
ing landowners. Different questions of
law were presented to the trial court and
are now presented here, in reference to
each class of respondent. Moreover,
since the action is one to quiet each plain-
tiff's title to the water as against defend-
ant, different questions of fact are pre-
sented as to each plaintiff.
As opposed to these respondents, there is
but one defendant and appellant, the Lind-
say-Strathmore Irrigation District. Its
main lands are located outside the delta
proper, and most of the lands within the
district are slightly higher than the lands
of respondents. It is a public corpora-
tion, organized in 1915, under the Irriga-
tion District Act of 1897 and amendments
thereto. St. 1897, p. 254, as amended. It
owns a large ranch designated as the
Rancho de Kaweah, located on the Kaweah
delta, and partially riparian to the Kaweah
river. It desires, by means of wells and
pumping plants, to pump from the waters
underlying this ranch 25,000-acr-feet of
water yearly, and to transport and use
this appropriated water for irrigation
purposes on farm lands within the district
some 12 miles away.
At the threshold of this case, two ad-
mitted facts stand out which are of para-.
mount importance:







45 PACIFIC REPORTER, 2d SERIES


1. The rights of appellant, as riparian
owner of the Rancho de Kaweah, are not
involved on this appeal. The rights of ap-
pellant, as such riparian owner, were ad-
mittedly protected by the judgment of the
lower court.
2. No question of priority between re-
spondent appropriators and appellant is
presented. Appellant has conceded at all
stages in this controversy that, whatever
the rights of respondent appropriators
may be, such rights are prior in time and,
therefore, paramount to any right of ap-
pellant to take water by means of appro-
priation for use on lands within the dis-
trict and not riparian to the Kaweah river.
Appellant does strenuously contend, as will
hereafter appear, that the amount of w.a-
ter heretofore used by these respondent
appropriators has not been all put to
beneficial uses, but it expressly admits
that respondent appropriators have a claim
prior in time and right to any right of ap-
pellant as an appropriator to whatever
quantity respondents prior to 1916 put to a
beneficial use.
The Kaweah river is a natural water
course having its source in the western
slope of the Sierra Nevada Mountains in
the eastern part of the county of Tulare.
This river flows down the mountain slopes,
through Tulare county, in a southwester-
ly direction, to a point in the valley known
as McKay Point. At this point, the
Kaweah river divides into two channels.
The northerly channel from McKay Point
westerly, for a distance of about 22 miles,
is known as the St. Johns river and,
thereafter, is known as Cross creek. The
southerly channel, from McKay Point
westerly for a distance of about 9 miles,
is known as the Kaweah or Lower Kawe-
ah river (which for the sake of clar-
ity, will hereafter in this opinion be re-
ferred to as the Lower Kaweah river)
and, thereafter is known as Mill creek.
The waters of the Kaweah river, for many
years, and in accordance with the judg-
ment of the court in an action to which
appellant was not a party, have been di-
vided by the plaintiff ditch companies and
by the plaintiff Tulare Irrigation District
and others, not including appellant, by
means of a concrete weir located at such
point, by means of which the flow of the
Kaweah river is evenly divided so that
one-half the waters thereof flow down the
St. Johns river and one-half down the
Lower Kaweah river, except that when


the water in the Kaweah river at McKay
Point decreases to 80 cubic feet per sec-
ond after the snow run off of each year,
then all the water is turned down the
channel of the Lower Kaweah river and
continues entirely to flow down that chan-
nel until the 1st day of October, and,
thereafter, until the quantity at McKay
Point exceeds 80 cubic feet per second,
when it is again evenly divided.
The Kaweah river has all of the char-
acteristics of streams that have their
source in the high Sierra Nevada Moun-
tains. Its principal supply is derived from
the snows which fall in the high altitudes
during the winter months and then, by a
process of melting and freezing, are com-
pacted in the form of ice and snow crust
and so remain until melted by the warm
suns of the spring and early summer
months. The winter supply of water in
the river is derived principally from rains
which fall at intervals in the foothills and
upon the valley floor. Above McKay
Point, the Kaweah river drains an area of
about 600 square miles of the western
slopes of the Sierra Nevada Mountains,
which area forms a separate and distinct
watershed. As might be expected from
such a stream, the surface flow is extreme-
ly variable. The court found that the flow
of the river "varies greatly in amount of
flow and in rate of flow from year to
year, from season to season, from day to
day, and from hour to hour." This find-
ing is amply supported by the evidence and
all the parties to this appeal concede it to
be true.
From McKay Point, extending westerly
and southwesterly therefrom, and compris-
ing a portion of the floor of the San Joa-
quin Valley, there exists an alluvial fan
or delta built up through the years by the
Kaweah river. This Kaweah delta com-
prises in all more than 300,000 acres, and
it is on this delta that the lands irrigated
by the various respondents are located.
The delta is generally triangular in shape,
having its apex at McKay Point, and sloping
gradually downward from McKay Point.
About 7 miles westerly from McKay Point
there are certain small mountains known as
the Venice Hills, which control the course
of both branches of the Kaweah river west-
erly from McKay Point. These hills divide
the delta into two parts. That portion of the
delta lying east of the Venice Hills is known
as the basin, containing 7,200 acres. The al-
luvium therein is of a sandy and porous


--i


976 cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P. (2d)


nature, extending to bedrock and varying
from 100 to in excess of 400 feet in depth.
Appellant's ranch, the Rancho de Kaweah,
upon which are located the wells from which
it secures the water, the transportation of
which away from.the rancho caused this ac-
tion to be brought, is located in the basin,
about 5 miles westerly from McKay Point.
As already stated, the rancho is in part
riparian to the Lower Kaweah river, ex-
tending on both sides thereof.
The St. Johns river, the northerly branch
of the Kaweah river, passes westerly from
McKay Point along or.near the northerly
boundary of the basin and leaves the basin
through an opening in the Venice Hills
known as St. Johns Gap. The Lower
Kaweah river passes in a southwesterly di-
rection from McKay Point along or near
the southerly boundary of the basin to what
is known as the Kaweah gap, between the
Venice Hills and the so-called red lands to
the south. That portion of the Kaweah
delta lying westerly from the Venice Hills
is called the Lower Kaweah delta. It is of a
minimum width of slightly more than 2 miles
immediately below the gaps, in the Venice
Hills, and then widens rapidly westward be-
yond the west boundary of Tulare county
and ultimately merges into the delta of the
Kings river. Upon the Lower Kaweah delta
are located the towns of Visalia and Tulare,
and other towns and thousands of farms,
and it is on this portion of the delta that
the major portion of the lands irrigated by
respondents is located. The soils of the
delta are sandy and highly porous, and ex-
tend to great depths before bedrock is en-
countered. The soils are highly fertile and
the lands therein are intensely farmed. The
lands adjoining the delta on the southeast
and on the north are composed largely of
adobe and clay, referred to by the witnesses
as "red lands," through which water will not
percolate readily. These red lands effectual-
ly prevent any material percolation of the
underground waters off the delta in the di-
rections mentioned.
The Lower Kaweah delta is not only
traversed by the St. Johns and Lower
Kaweah rivers, but also almost its entire
area is covered with a network of streams,
canals, sloughs, and ditches, by means of
which the water is carried to the lands ir-
rigated. The underground water level has
always been high, the delta constituting a
'huge underground reservoir. The trial
court found that these underground waters
are diffused percolating waters which ex-
tend "downward from a few feet of the
45 P.(2d)--62


ground surface to a great depth and many
miles in width, moving generally with the
surface slope and at right angles to the sur-
face contours of the delta at various depths
beneath the surface of the said delta."
The court likewise found that prior to
1918 the underground water table in the
major portion of the Lower Kaweah delta
had been falling to an extent sufficient to in-
crease substantially the cost and difficulty of
pumping water therefrom for use on overly-
ing lands. The prevailing crops on the delta
are alIalfa, fruit trees, timber, grain, field
crops, and other agricultural products. An
appreciable portion of the delta is devoted
to wild pasture. All of the respondents use
the huge underground reservoir either for
direct irrigation by means of wells and
pumping plants or for the support of the
rivers or for subirrigation.
The appellant, as already pointed out, is
an irrigation district, organized in 1915.
The lands included within the district proper
are almost due south from McKay Point and
some 12 to 15 miles therefrom. The district
has a surface area of about 16,000 acres and
its lands are entirely within Tulare county.
All of the lands within the district are sus-
ceptible to irrigation, and over 14,000 acres
are suitable for the growing of oranges and
other citrus fruits, which is the principal
crop grown thereon. In 1916, when this
action was commenced, landowners within
the district had approximately 6,000 acres
planted in citrus fruits and, since the action
was commenced and up until the present
trial, in spite of the dispute over their claim
to water, landowners within the district
have planted an additional 3,000 acres in
citrus trees of various kinds. Citrus fruits,
in the district in question, cannot be grown
successfully without the use of water for
irrigation. Because of the tremendous in-
crease in the use of the water within the
district, its water supply began to fail as
early as 1913. The trial court found that
although underneath the lands of the dis-
trict there is an underground body of wa-
ter, the use of the same for irrigation pur-
poses by the district has caused an excessive
drain thereon, so that the water pumped
from a majority of the wells in the district
is now heavily impregnated with salt, and
that such body of water is inadequate for
the reasonable needs of the landowners
within the district; that there is no supply
of water available within the district which
is adequate for the needs of the landowners
therein; "that it is necessary in order to
prevent the majority of the trees and fruits


Cal 977


___


- sa~Laaplsl Ir~-----







45 PACIFIC REPORTER, 2d SERIES


and grasses growing on the lands within said
district from withering and dying, and to
prevent the major. portions of said lands
from becoming arid and useful only for
dry farming, for the said District to
have a supply of water conveyed to the
lands within said District from some source
outside of and away from said Dis-
trict." The court also found that if
the lands within the district be deprived
of water, the citrus trees growing thereon
will die; that the lands within the district
planted to citrus trees "are of the reasonable
value on the average of approximately
twelve hundred and fifty dollars per acre;
that the said lands without water for irriga-
tion would not exceed fifty and no/100
($50.00) Dollars per acre in value."
Faced with the necessity of securing out-
side and necessary water, the landowners or-
ganized the defendant district in 1915. Im-
mediately thereafter the district purchased
the Rancho de Kaweah, located in that por-
tion of the delta known as the basin. In
addition to its underground supply, the
rancho in part is riparian to the Lower
Kaweah river and is upstream from most
of the lands of respondents, and upstream
from most but not all of the points of diver-
sion used by respondents. After the pur-
chase of the rancho, the district started the
boring of wells thereon for the purpose of
tapping the underground waters of the
basin. Uver a period ot time, some 39 wells
were drilled and electric pumps installed
therein. These pumps and wells were then
connected with a general irrigation system
consisting of 9 miles of banded wood stave
pipe; 61/2 miles of 48-inch continuous wood
stave pipe; 12 miles of concrete-lined ditch-
es; 85 miles of riveted steel pressure pipe
and 2 high head pumping plants. The total
irrigation system cost $1,600.000. This sys-
tem was designed to pump from the waters
underlying the rancho 25,000-acre feet an-
nually and to carry a maximum head of 75
cubic feet of water per second. The district
did not begin actual pumping operations on
the rancho for use within the district until
1918. During the period 1918 to the time
of trial in 1922, the district pumped between
13,000 and 15,000-acre feet per year from
the rancho and conveyed the same to its
landowners within the district for irrigation
purposes. Under the terms of the stay or-
der issued by the trial court pending this ap-
peal, the validity of which has been upheld
(Tulare Irrigation District v. Superior
Court, 197 Cal. 649, 242 P. 725), the appel-
lant has been permitted to pump from the


rancho each year the quantity of water pro-
vided for in the stay order, subject to the-
conditions therein imposed.
The trial court found that the pumping by
defendant of any portion of the waters un-
derlying the rancho and the transportation
of such waters away from the delta has in-
jured the respondents and that each of the
respondents, if such pumping continues, will
be deprived of the benefit of the waters for
a portion of each year for the purposes tat
the respondents are entitled to use the water.
The trial court also found that not only will
defendant's pumping diminish the under-
ground water supply but, by induced seep-
age, wll also diminish the surface flow of
the Lower Kaweah and the St. Johns rivers.
Some word should now be said of each
class of respondent. The Tulare Irrigation
District, and 13 other of the plaintiff corpo-
rations, have rights as appropriators below
McKay Point, some from the St. Johns and
some from the Lower Kaweah river, and
some from both. These respondents have
exercised their rights of appropriation for
many years prior to the commencement of
this action. Their rights admittedly long
antedate any right of defendant to appro-
priate water. In fixing the appropriative
right of each respondent appropriator, the
trial court divided the year into two six-
month periods-period No. 1 from February
1 to July 31, and period No. 2 from August
1 to January 31. In fixing the appropriative
right of each of the respondent appropria-
tors in each of these periods, the trial court
did not award a specific quantity of water
but used as its unit of measure cubic feet
per second, that is, rate of flow. The total
of the appropriations found to be possessed
by all of the respondent appropriators for
the first period is 2,000 cubic feet per second,
and, for the second period, 1,000 cubic feet
per second.
The second group of respondents consists
of the riparian owners along both rivers
and their branches. The trial court found
that the lands of these riparian owners are
agricultural in character and require a rea-
sonable quantity of the waters of the stream
to which they are riparian for irrigation
purposes and the whole of the underground
flow to moisten their lands from beneath.
The trial court did not fix the amount in
quantity or rate of flow reasonably required
by the respective riparians for irrigation or
other beneficial purposes.
In addition to the original riparian plain-
tiffs, a group of riparian owners also came


II a I I


---------- --


978 Cal.






TULARE IRR. DIST. v. LINDSAY-
45 P.
into the case by way of intervention, the
complaint in intervention being filed in 1920.
Appellant has settled its differences with
some of the riparians, and particularly with
the interveners, pending this appeal.
The third group of respondents consists
of overlying landowners. With the excep-
tion of two of this group--Morphew and
Thomas Jacob-the lands of these parties
are situated in the Lower Kaweah delta,
west of the Venice Hills. The trial court
found that the water underlying the lands
of these parties (other than the lacobs) does
not extend under the Rancho de Kaweah
and expressly found that the water under-
lying the rancho and the lands of these re-
spondents did not constitute a common sup-
p Pending this appeal, the appellant has
entered into an agreement with one of the
principal overlying owners, the Mineral
King Fruit Company, the exact nature of
which will be discussed later. The over-
lying lands of Morphew and Thomas Jacob
are situate in the basin. The trial court
found that the waters underlying the Jacobs'
lands and the waters underlying the Rancho
de Kaweah constitute a common source
of supply. Apparently, however, no relief
was granted the Jacobs by reason of their
ownership of overlying lands. The Jacobs,
as are several other overlying defendants,
are also riparian owners, and apparently the
relief granted them was in their capacity as
riparians.
Some reference should now be made to
the pleadings and the issues framed there-
by. The complaint describes in detail the
Kaweah river and the delta built up by
the water discharged therefrom; alleges
that the Kaweah river during the late
spring and early summer months carries
more water than it does earlier and later
in the year (admitted by defendant in its
answer); that there are times in the year
when the Lower Kaweah river has no sur-
face flow below the head of Mill creek
and the St. Johns river has no surface flow
below the head of Lane slough (admit-
ted); that certain of the creeks and
sloughs leading from the Lower Kaweah
and St. Johns rivers were cut out during
extremely wet years by the waters of these
rivers and that during every year, except
extremely dry years, these designated
creeks and sloughs have carried surface as
well as a portion of the underground flow
of the rivers (denied); that by means of
the surface and underground flows of these
channels the waters of the rivers have
been naturally deposited and distributed up-


-STRATHMORE IRR. DIST. Cal. 979
*(2d)
on the delta (denied), resulting in the
nourishment of agricultural crops on many
hundreds of farms on the delta; that the
farmers on the delta require all of the wa-
ters of the river, both surface and under-
ground, for the irrigation thereof, and for
the moistening of said farms from below
by means of the underground flow there-
of, and for watering live stock, and for do-
mestic and other beneficial uses (denied,
appellant alleging that there is a huge
surplus of water); that at all times dur-
ing the irrigation season the underground
flow of the rivers is necessary to furnish
a foundation for the surface waters flow-
ing in the channels and to hold up. the un-
derground water table beneath the surface
of the lands, in order to make the same
productive (denied); that any lowering of
the water table during such time will dimin-
ish the productive qualities of the land
and will also diminish the surface flow of
the two rivers (denied) ; that plaintiffs for
many years have used and require the
use of the whole of said underground flow,
including the flood waters, for the above
purposes and to replenish the underground
strata (denied). It should be here added
that by the above allegations the plaintiffs
collectively claim every drop of surface or
underground or diffused percolating water
in the delta. Following the above allega-
tions, the plaintiffs next allege the rights
claimed by each plaintiff appropriator,
each claim being set forth in rate of flow,
that is, in cubic feet of water per second.
The riparian plaintiffs then describe their
property and allege that each of them is
entitled to the entire flow of the stream
against any diminution by the defendant
The overlying plaintiffs allege that their
lands are agricultural in character and re-
quire all of the underground waters for
the purposes above described.
The complaint then alleges that prior to
the commencement of the action defend-
ant had bored three wells on the Rancho
de Kaweah, thus tapping the underground
waters of the delta, and that it threatens
to drill 37 more wells and to pump there-
from a large quantity of water, and to
transport and convey the same to the lands
within its borders; that, such pumping will
diminish not only the underground supply,
but also, by induced seepage, will diminish
the surface flow of the two rivers. The
prayer of the complaint is that the court
decree that the defendant has no right as
against the plaintiffs to divert any of the
water underlying the rancho to its lands,







45 PACIFIC REPORTER, 2d SERIES


and to enjoin the defendant from so divert-
ing the water.
The defendant's second amended and
engrossed answer denies the major allega-
tions of the complaint, as above indicated,
and also sets forth certain affirmative de-
fenses. The main purport of the denials
is to place in issue the principal question
as to whether there is in the Kaweah river
and in the waters underlying the delta a
surplus subject to appropriation. Defend-
ant admits its ownership of the Rancho
de Kaweah and the boring of 37 wells
thereon, and that starting in 1918 it had
pumped therefrom and conveyed to its
lands each year a designated quantity of
water averaging about 14,000-acre feet per
annum; alleges that this has not and
will not injure any of the plaintiffs; that
defendant can pump each year during
the irrigation season up to 25,000-acre feet
and convey the same to its lands, without
injury to any of the plaintiffs; denies that
the pumping has diminished or will dimin-
ish the surface flow of the St. Johns
river; denies that such pumping has di-
minished or will substantially diminish the
underground waters; denies that its pump-
ing has affected or will affect the early
surface flow of the Kaweah river; de-
nies that its pumping has diminished or
will "diminish the late surface flow of
the Kaweah river in an amount at any
time in excess of ten cubic feet of water
per second; or in an. average amount in
excess of six cubic feet per second"; de-
nies that such taking will injure any of the
plaintiffs. Defendant also alleges that it
is the owner of the Enlow ditch, leading
out of the St. Johns river, and is entitled
to divert 4 cubic feet of water per sec-
ond therefrom for use on the rancho; al-
leges that this right is prior to any right
of any of the plaintiffs.
As a separate defense against the ripa-
rian owners, defendant sought to condemn,
under section 534 of the Code of Civil Pro-
cedure, all rights of the riparians above
their actual needs for beneficial purposes.
In this defense, it is alleged that the de-
fendant is an irrigation district; that de-
fendant has expended $1,600,000 for the in-
stallation of its irrigation system; that,
during each irrigation season, defendant
district needs the water and has no other
available supply; that it proposes to take
25,000-acre feet annually at the maximum
rate of 75 cubic feet per second from the
waters underlying the Rancho de Kaweah
and transport the same for use on lands


within the district; that defendant can
take that amount of water without inter-
fering with the actual and necessary bene-
ficial uses of the riparian owners; that
defendant desires that the court shall fix
the damages, if any, that will result to the
riparians by reason of such taking.
In response to this plea, the plaintiff ripa-
rians applied to the trial court for an order
bringing in additional parties, alleging that
their presence was necessary for the de-
termination of the question as to whether
or not there was a surplus of water sup-
plied by the Kaweah river ,in excess of
that required to serve the beneficial uses or
purposes of the riparian owners. In 1920
and again, the trial court, in response to
this request, made its order bringing into
the case as new parties a large num-
ber of persons and corporations. These
persons and corporations filed their respec-
tive statements of rights denying the ma-
terial allegations in defendant's defense and
particularly denying the existence of a sur-
plus over their beneficial needs.
As a second defense, defendant pleaded
in its answer that in the event the court
shall find that the pumping operations of
defendant will diminish the surface flow of
the Lower Kaweah river so as to deprive
any of the plaintiffs of the water to which
they are entitled, then defendant is ready,
able, and willing, and it is possible and
practicable for it, to construct and maintain
a channel with impervious bottoms and
sides whereby a portion of the flow of
the Lower Kaweah river may be trans-
ported across the cone of depression caus-
ed by defendant's pumping during certain
periods of the year.
The prayer of the answer is that the
plaintiffs take nothing by the action; that
the court decree that the defendant has
the right to divert 4 cubic feet per second
from the St. Johns river by means of the
Enlow ditch; that the court fix the dam-
ages, if any, that will result to the riparian
owners, as provided in section 534 of the
Code of Civil Procedure, and that, upon
the payment of such damages, if any, a
final order of condemnation be made; and
that defendant have judgment that it be
entitled to take the quantity of water it
claims, and for other and further relief.
Later, in June, 1923, defendant, after
leave of court had been obtained, filed a
supplemental answer setting up an addi-
tional defense, based on section 11 of the
Water Commission Act. That act had


- ar~axl-------s--


980 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


been passed in 1913 (St. 1913, pp. 1012,
1017, as amended by St. 1919, p. 513) and
section 11 thereof provides that 10 years
nonuse of the riparian ri sha conti-
tute an abandonment thereof. This de-
fense was aimed solely at the riparian own-
ers. After alleging the passage and date
of the passage of the Water Commission
Act, and particularly section 11 thereof,
it is therein alleged that the plaintiffs W.
L. Fisher, Thomas Jacob, Morphew Jacob,
William Epp, Henry Bente, G. W. King,
Frank J. Brundage, W. W. Hicks, Walter
Rouse, Visalia Orchard Company, and Min-
eral King Fruit Company have not divert-
ed for beneficial nurnoc; any nortinn 1f
the waters of the streams to which their
respective holdings are riparian for use up-
on their riparian lands for 10 consecutive
years from and after the passage of the
Water Commission Act. It is also alleged
that, with the exception of Walter Rouse,
all of the other named riparians have rights
in plaintiff ditches sufficient for their rea-
sonable needs; that all of the riparian
plaintiffs and all of the riparians brought
in by order of court pursuant to the pro-
visions of section 534 of the Code of Civil
Procedure have lost and abandoned their
riparian right by virtue of 10 years non-
use of such right.
In 1920 the defendant filed a cross-com-
plaint against two of the plaintiffs-the
Consolidated People's Ditch Company and
the Elk Bayou Ditch Company-alleging
that the Rancho de Kaweah is riparian to
the Lower Kaweah river; that these two
cross-defendants were diverting water
therefrom upstream from the Rancho de
Kaweah 353 cubic feet per second in ex-
cess of their right, and prayed for an
injunction. These cross-defendants sub-
sequently answered, specifically denying
the material allegations of the cross-com-
plaint.
In October of 19'0, certain parties se-
cured leave of court to file, and subsequent-
ly filed, a complaint in intervention. These
parties are H. E. Wright, S. E. Railsback,
Gilbert H. Russell, Gordon Hall, James K.
Moffitt, John E. Hooper, Willys Hall,
George A. Smith, Nellie M. Smith, and
Alice C. Hall. The complaint in inter-
vention sets forth the riparian character of
the lands of these parties and thereafter
follows generally the allegations of the
complaint. Defendant answered the com-
plaint in intervention by allegations similar-
to those contained in the second amended
and engrossed answer, above analyzed, and,


in addition thereto, alleged as against these
parties that they were not entitled to an
injunction because of the intervention of
a public use. In 1923, defendant filed a
supplemental answer to the complaint in
intervention, based on section 11 of the
Water Commission Act, alleging then
that these interveners had lost their rina-
rian right because of ten consecutive years
of nonuse.
Brief reference should be made to one
other pleading. Respondent Marietta R.
Gray became a party to the action by order
of court made under section 534 of the
Code of Civil Procedure. In place of the
"Statement of Rights" provided for in that
section, she filed a pleading entitled, "Com-
plaint and Reply of Marietta R. Gray."
This pleading need not be analyzed for the
reason that defendant has settled its dif-
ferences with this party, pending this ap-
peal, as will hereafter appear. Sufficient
it is to say that she claims as a riparian
to Outside creek, alleged to be a natural
water course and a tributary of the Lower
Kaweah river. Defendant denied the ma-
terial allegations of this pleading and, in
addition, alleged the intervention of a pub-
lic use as against this party.
Without going into further detail, the
issues presented by these many pleadings
may be summarized as follows:
1. Whether there is a surplus of water in
the delta from which the defendant can
pump 25,000-acre feet annually, or any
other lesser amount, without injury to the
prior rights of the plaintiff appropriators.
A solution of this issue depends upon a de-
termination of the quantity of water ac-
tually diverted by the plaintiff appropria-
tors prior to 1916, and whether such
amount so diverted was reasonably neces-
sary for beneficial purposes. The main
contention of appellant in this regard is
that respondent appropriators have never
diverted the amount found by the trial
court, and that, even as to the amount ac-
tually diverted, the methods of use and
methods of diversion employed by respond-
ent appropriators are and have been waste-
ful. It is further contended by appellant
that it is not necessary for any appropria-
tor to divert any quantity of water at all
during the winter season.
2. Whether appellant's pumping opera-
tions on the Rancho affect in any amount
the surface flow of the St. Johns river, and
whether such pumping affects the early sea-
sonal flow of the Lower Kaweah river at


Cal. 981


I


~PPL ~___~







45 PACIFIC REPORTER, 2d SERIES


any time when the respondents have any
use for the same.
3. Assuming, however, that appellant's
pumping does diminish the flow of the
Lower Kaweah river during periods of
need by respondents, then the issue was
presented as to the feasibility of construct-
ing an impervious by-pass across the cone
of depression created by the pumping.
4. Whether the reasonable needs of all
the lands owned by the riparians, wheth-
er plaintiffs, interveners, or parties brought
in under section 534 of the Code of Civil
Procedure, are less than the flow of the
two rivers and their tributaries. Assum-
ing that there is an excess over the reason-
able needs of all riparians, then the ques-
tion is presented as to whether or not ap-
pellant is entitled to have any rights the
riparians may have over such reasonable
needs condemned under section 534 of the
Code of Civil Procedure, or some other
form of condemnation. There is also pre-
sented, in reference to the riparian par-
ties, the question as to whether they, or
any of them, have lost their riparian rihts
by reason ot 10 years' nonuse under sec-
tion 11 of the Water Commission Act.
5. Whether the interveners and Mari-
etta R. Gray are stopped to claim the
relief sought by reason of the intervention
of a public use.
On the issues thus framed, the trial start-
ed on April 28, 1921, and was completed
July 31, 1923. In April of 1924, the trial
court rendered what appellant describes as
a "memorandum opinion," not contained
in the record on appeal, but mentioned
here simply for purposes of continuity. As
summarized by appellant, the trial court
stated that in its opinion the water gath-
ering area of the Kaweah river, supple-
mented by the rainfall of the valley terri-
tories, affords sufficient water in annual
quantities for the uses of both plaintiffs
and defendant, except in dry years, but it,
the trial court, had been unable to discover
any plan whereby a portion of this water
might be made available to defendant and
that, therefore, plaintiffs and interveners
were entitled to a perpetual injunction pro-
hibiting the defendant from pumping any
water from the waters underlying the
Rancho de Kaweah or from the surface
waters of the Kaweah river (except the
extraordinary flood waters) for transpor-
tation to and use upon the lands within
defendant district. Contemporaneously
with the entering of the judgment, the


trial court made and entered its order sus-
pending the operation of the injunction,
subject to conditions, pending appeal. Aft-
er its motion for a new trial had been de-
nied, defendant perfected this appeal un-
der the provisions of section 953a of the
Code of Civil Procedure.
On this appeal, appellant specifies some
75 findings as being unsupported by the
evidence; specifies 4 particulars in which
the judgment is alleged to be against the
law; and specifies 7 other alleged errors
in the judgment.
Before discussing the merits of the ap-
peal, some mention must be made of cer-
tain compromises effected pending the ap-
peal. On February 19, 1931, there was
filed in this court a stipulation entitled
"Stipulation for Modification of Judgment"
by and between certain of the respondent
interveners and appellant. The respondent
interveners named therein are H. E.
Wright, S. E. Railsback, Gilbert H. Rus-
sell, Gordon Hall, James K. Moffitt, Joseph
G. Hooper, Willys Hall, George A. Smith,
Nellie N. Smith, and Alice C. Hall, and
constitute the entire group of interveners
represented by H. Scott Jacobs, as attor-
ney. These parties claim as owners of ap-
proximately 12,000 acres of land in Kings
county, found by the trial court to be ri-
parian to Cross creek, the continuation of
the St. Johns river. The above-named par-
ties constitute all of the interveners in the
action, unless respondent Marietta R. Gray
also be considered one of that group.
Without recounting all the terms of the
stipulation, it is therein stated that "the
'controversy between said Interveners and
Respondents and said Defendant and Ap-
pellant has been fully settled, compromised
and adjusted by agreement between said
parties." The stipulation then recites the
entering of the present judgment 'and the
fact that an appeal is pending, and then re-
cites that it is agreed that the judgment
may be modified by adding certain provi-
sions to paragraphs X and XIV of the
judgment and by eliminating paragraph
XX therefrom. The modifications thus
provided for are to the effect that as
against the named respondents appellant is
entitled to divert and transport away from
the Kaweah or St. Johns rivers, or any of
their branches, or from the waters underly-
ing the Rancho de Kaweah or the Kaweah
delta, at such times and at such a rate as it
'may desire, a quantity of water in each
year equal to the amount that would be
produced by a continuous flow of 35 cubic


- ---- -


9S2 Cal.







TULARE IRR. DIST. v. LINIDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


feet of water per second during the year
(approximately 25,500-acre feet). The ex-
act terms of the modification will appear in
the final order of this court on this appeal.
On April 7, 1931, there was filed in this
court a "Notice of Motion to Reverse
Judgment in favor of Respondent, Min-
eral King Fruit Company." The fruit
company is one of the riparian and over-
lying owners. The motion is based on an
agreement entered into on September 2,
1930, between the fruit company and appel-
lant. Counsel for this company have made
no written objection to the granting of the
motion, but during the oral argument ob-
jected solely on the grounds that they had
not been consulted by their client before
the agreement was made, the agreement
having been entered into by the officers of
their client; that their last instructions
from their client were to prosecute the ap-
peal; that they had been unable to get in
touch with their client in the two days in-
tervening between service of the motion
and the oral argument; that they did not
know their client's desires in the matter.
The motion was then taken under submis-
sion, to be determined with the appeal on
the merits, counsel being informed that
they could make any objection they saw fit
to the granting of the motion. Since the
oral argument, counsel for respondents
have filed two briefs in this case and in
neither of them is any objection made to
the granting of the motion. It appears,
therefore, that all objections thereto have
been removed.
The agreement first recites that the fruit
company has sold to one Huebert certain
described shares of stock, and that Hue-
bert, in purchasing the stock, was acting as
agent of appellant; that-as part of the con-
sideration for the purchase of the stock the
fruit company agreed to execute the pres-
ent agreement; that the fruit company is a
plaintiff in this action, claiming as a ripari-
an and overlying owner, and is also plain-
tiff in another described action. In con-
sideration of the purchase from it of the
stock, the fruit company agrees "that it
will and it hereby does waive, surrender
and release any claim that it may now or
hereafter have as owner of said lands
against said Lindsay-Strathmore Irrigation
District for injunction or other relief, by
reason of the pumping of water by said ir-
rigation district from the lands owned or
occupied by said district or the transporta-
tion of said water to the lands embraced
within said district or the use of such wa-


ter thereon, or by reason of any diversion
by said irrigation district of any of the
waters of said Kaweah river, said St.
Johns river, or said Mill creek, for use
upon the lands embraced within the
said irrigation district, and particular-
ly any claim to which the said party of
the first part (the fruit company) may
now or hereafter have, by reason of any
judgment or order made or hereafter made
in either of said actions above referred to,
and said party of the first part further
agrees that upon the written request of the
party of the second part (appellant) it will
take such steps as may be necessary to
cause judgment of dismissal in favor of
said district in each of said actions to be
entered of record in the said proceedings
so far as the rights of said party of the
first part are concerned. *" From
these provisions, it is obvious that the con-
troversy between the fruit company and
appellant has been finally settled and that,
as to these parties, all questions on this
appeal have now become moot. The mo-
tion should, therefore, be granted and the
judgment reversed as to the Mineral King
Fruit Company, with instructions to the
trial court to dismiss the action with preju-
dice to this party.
On July 1, 1932, there was filed in this
court another document entitled "Stipula-
tion for Modification of Judgment," this
time affecting the rights of respondent
Marietta R. Gray, another riparian and
overlying party. The terms of this stipu-
lation are almost identical with the one
above discussed affecting the rights of the
interveners. The terms of this stipulation
will be set forth in the order of this court
at the end of this opinion.
As a result of these compromises and
stipulations, there is removed from the ne-
cessity of consideration the claims of a
considerable number of riparian and over-
lying owners. However, the rights of all
riparian and overlying owners have not
been settled, so that the claims of those
remaining must be disposed of. For pur-
poses of convenience, the rights of the
riparian and overlying respondents will be
considered in this opinion before the rights
of the respondent appropriators are con-
sidered.
In reference to the riparian lands, the
trial court found that upon such lands, for
many years, the owners thereof have
grown crops of natural grasses and other
feed products, also alfalfa, grain, and fruit


CaL 983








45 PACIFIC REPORTER, 2d SERIES


trees, and other, agricultural products for
commercial purposes; "that the said lands
are agricultural in character and require
and have required a reasonable quantity
of the waters of the stream to which said
lands are riparian, respectively, for the ir-
rigation thereof, and the whole of the un-
derground flow of said stream and of the
Kaweah river to moisten the said land
from beneath and to render it productive
and to enable the owner thereof to raise
such crops as he raises and is and has
been accustomed to raise thereon, and for
livestock to drink and for domestic and
other useful and beneficial purposes- to
which said land is now and at all times
herein mentioned and for many years last
past has been devoted; that each of said
riparian owners has a prior, superior and
paramount right as against said defend-
ant, to the entire natural flow of such
stream to which the lands of such owner
are riparian as aforesaid, as against any
dimitution thereof by the said defendant,
except as the said Kaweah River below
said McKay Point may be diminished by
the riparian uses of said defendant upon
its riparian lands on the said Rancho de
Kaweah";- that the riparian plaintiffs do
not obtain water for irrigation purposes
from the canals or ditches of the plaintiff
ditch companies; that it is true "that the
natural flow of the stream or streams to
which the lands of the plaintiffs who are
riparian owners as herein
found, has, in each and every year since
prior to the commencement of this ac-
tion naturally irrigated said riparian lands
and moistened the ground therein to a
great and unknown extent, and thus stim-
ulated vegetation thereon, and added to
the fertility thereof, and does now natural-
ly irrigate the same and so moisten the
ground therein, and stimulate the vegeta-
tion thereon and add to the fertility there-
of; and said natural flow has been and is
beneficial to all of said riparian lands and
to the owners thereof"; that the pumping
by defendant diminishes the surface flow
of both the St. Johns and Lower Kaweah
rivers.
As to the overlying owners, the court
found that the lands of the plaintiffs "upon
which water has been and is now being
pumped from underground sources of sup-
ply" (overlying lands) are agricultural in
character, upon which the owners have for
many years grown agricultural crops; that
underneath the surface of the delta west
of the gaps in the Venice Hills there is


"an underground body of diffused percolat-
ing water which does not form a part of
the surface or underflow of said Kaweah
River or the branches thereof, and ex-
tends downward from a few feet of the
ground surface to a great depth and many
miles in width, moving generally with the
surface slope and at right angles to the
surface contours of said Delta, at various
depths beneath the surface of the said
Delta; that said underground body of wa-
ter decs not constitute a portion of the un-
derflo:v of any river or stream. *
Through the lower [Kaweah] Delta it ex-
tends downward to great depth and is
drawn upon extensively by pumps for use
on overlying lands. It is prevented from
percolating off the Delta by impervious
and tight soils of great depth, extending
along the outward limits of the Delta;
that from a period prior to the year 1918,
and ever since said year, the underground
water table within the major portion of
the low Kaweah Delta has been and is
falling; that the amount of lowering of
said water table has been sufficient to in-
crease substantially the cost and difficulty
of pumping water therefrom for use on
overlying lands; that said un-
derground body of water is con-
stantly supplied by waters sinking from
the Kaweah River and its branches, and
below said gaps from the .underflow mov-
ing out of said basin through said gaps,
and by seepage from the canals and ditch-
es, and by the water escaping downward
from the irrigation waters applied to the
surface of the lands within.said Delta, and
to a very limited extent from small creeks
draining into the Delta and from rainfall
upon the Delta"; that the body of under-
ground percolating water underlies the en-
tire surface of the Lower Kaweah delta;
"that any lowering of said water table to
a depth below the reach of normal root
growth of crops, except annual shallow
rooted crops, or any substantial lessening
of the underground flow during any time,
will greatly diminish the productive quali-
ties of said lands and diminish the quanti-
ty and quality of the crops grown there-
on"; that the underground body of water
when high serves to keep the surface and
underflow of the river from percolating in-
to the surrounding area, and that the high-
er the percolating underground water table
the longer will the streams flow and the
greater the quantity of water in them;
that the plaintiffs do not require all of the
underground body of percolating water for


S94 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


beneficial uses; that the overlying owners
do draw upon the underground body of
water for beneficial uses; that it is not
true "that said plaintiffs and interveners
have used or require the use of all or any
substantial portion of the extraordinary
flood waters of said river to replenish the
said underground flow or to supply the
underground strata of said Delta below
said gaps"; that "it is not true that each
of said [overlying] lands, or any of said
owners, except the said plaintiffs Thomas
Jacob and Morphew Jacob, requires the
whole of the underflow of said Kaweah
River underneath the said lands upon
which such owner has obtained water by
means of pumps, for said purposes to sup-
ply water to such owner through or by
means of such wells and pumping plants
for his livestock to drink and for the ir-
rigation of his said lands" and for domes-
tic and other beneficial purposes; that
Thomas Jacob and Morphew Jacob have
upon their lands a well and pumping plant,
by means of which, prior to and since the
commencement of this action, they have
pumped a quantity of water from the un-
derground body of water underlying their
lands for beneficial purposes; that said
"underground supply is a portion of the
underground flow of said Kaweah River
and constitutes a common sup-
ply for said lands and the said
Rancho de Kaweah"; that the lands of
other overlying plaintiffs in the Lower
Kaweah delta do not overlie the same
source of supply as that underlying the
rancho; 'that defendant's pumping opera-
tions have substantially diminished the
quantity of water underlying the basin and
have substantially diminished the surface
flow of the rivers and their branches, thus
diminishing the quantity available to the
riparians; that the pumping operations of
defendant.induce seepage from both rivers,
causing a loss in the surface flow of both
streams; that the pumping of water from
the rancho and the conveying of the same
away from the basin in the amounts
pumped during the tendency of the action
"has diminished, and will, if continued in
the future, diminish the late surface flow
of the Lower Kaweah River in amounts
at all times in excess of ten cubic feet of
water per second, and in an average
amount in excess of six cubic feet per sec-
ond, and that the amount of said diminu-
tion has varied during said pumping oper-
ations from day to day and season to sea-
son, and that said operations of defendant
45 P.(2d)-62Y2


on various occasions and for many days
diminished the late surface flow of the
Lower Kaweah River to an extent in ex-
cess of forty (40) cubic feet of water per
second."
[1-3] The above summary of the find-
ings applicable to the riparian and overly-
ing owners is not intended to be inclusive,
but is here given to indicate the general
trend of the findings. It is to be noticed
that the trial court made no attempt to fix
either in acre feet or in second feet the
quantity of surface water to which the
riparian owners are entitled, being content
to find that such owners were entitled to
"a reasonable quantity of the waters of the
stream." As to the underground flow of
the streams, as distinguished from the un-
derground diffused percolating waters, the
trial court found that such riparians were
entitled to the "whole of the underground
flow of said stream." The trial court con-
cluded that each of the riparian owners
"has a prior superior and paramount right
as against said defendant to the entire nat-
ural flow of such stream as
against any diminution thereof by the said
defendant," except for riparian uses. It is
quite apparent from a reading of the find-
ings and the judgment predicated thereon
that the trial court applied the rule that a
riparian as against an appropriator, whose
right has not ripened into a right by pre-
scription, is entitled to the full flow of the
stream as it is wont to flow in a state of
nature, without diminution by the appro-
priator, and that any interference with
that right is an infringement of a vested
property right. Stated another way, the
trial court held that as between such par-
ties the riparian and overlying owners are
not limited to a reasonable beneficial use.
This was the law at the time the judgment
herein was entered. Miller & Lux v. Ma-
dera, etc., Co., 155 Cal. 59, 99 P. 502, 22 L.
R. A. (N. S.) 391; Miller v. Bay Cities
Water Co., 157 Cal. 256, 107 P. 115, 27 L.
R. A. (N. S.) 772. See, also, Herming-
haus v. Southern California Edison Co.,
200 Cal. 81, 252 P. 607, Fall River Valley
Irr. Dist. v. Mt. Shasta Power Corpora-
tion, 202 Cal. 56, 259 P. 444, 56 A. L.
R. 264, rendered subsequent to the enter-
ing of judgment herein, but expounding
the principles of law then existing. Since
the trial of this case, the people of this
state in the exercise of the police power
and by constitutional amendment have
changed the rule enunciated in these cases.
Section 3 of article 14 of the Constitution


Cal. 985


--- -- -- -----~







45 PACIFIC REPORTER, 2d SERIES


became effective in November of 1928. The
effect of this amendment has been to modi-
fy the lone standing riparian doctrine an-
nounced in the above cases, and the cases
cited therein, and to apply by constitutional
mandate the doctrine of reasonable use be-
tween riparian owners and appropriators,
and between overlying owners and appro-
priators. The effect of that amendment has
been so recently before this court, and has
been so fully discussed in the case of Pea-
body v. City of Vallejo, 40 P.(2d) 486,
that no useful purpose would be served by
repeating in this opinion what was there
said. See, also, Gin S. Chow v. City of
Santa Barbara, 217 Cal. 673, 22 P.(2d) 5.
Under this new doctrine, it is clear that
when a riparian or overlying owner brings
an action against an appropriator, it is no
longer sufficient to find that the plaintiffs
in such action are riparian or overlying
owners, and, on the basis of such finding,
issue the injunction. It is now necessary
for the trial court to determine whether
such owners, considering all the needs of
those in the particular water field, are put-
ting the waters to any reasonable beneficial
uses, giving consideration to all factors in-
volved, including reasonable methods of
use and reasonable methods of diversion.
From a consideration of such uses, the trial
court must then determine whether there is
a surplus in the water field subject to ap-
propriation. If the riparian is putting the
water to any reasonable beneficial uses, it
is now necessary for the trial court to find
expressly the quantity so required and so
used. A finding, such as that in the pres-
ent case to the effect that the riparian re-
quires a "reasonable" amount for such
uses, under the new doctrine, is clearly in-
sufficient and a judgment based thereon
must be reversed. The trial court, under
the new doctrine, must fix the quantity re-
quired by each riparian for his actual rea-
sonable beneficial uses, the same as it
would do in the case of an appropriator.
The new doctrine not only protects the ac-
tual reasonable beneficial uses of the rinari-
an but also the prospective reasonable ben-
eficial uses of the riparian. As to such
future or prospective reasonable beneficial
uses, it is quite obvious that the quantity
of water so required for such uses cannot
be fixed in amount until the need for such
use arises. Therefore, as to such uses, the
trial court in its findings and judgment,
should declare such prospective uses para-
mount to any right of the appropriator.
By such declaratory judgment, the rights


of the riparian will be fully protected
against the appropriative use ripening into
a right by prescription, but, until the ripari-
an needs the water, the appropriator may
use it, thus, at all times, putting all of the
available water to beneficial uses. The
trial court might well, by appropriate pro-
visions in its judgment, retain jurisdiction
over the cause, so that when a riparian
claims the need for water, the right to
which was awarded him under such a de-
claratory decree, the trial court may de-
termine whether the proposed new use, un-
der all the circumstances, is a reasonable
beneficial use and, if so, the quantity re-
quired for such use.
It is to be noted that the new doctrine
embodied in the constitutional amendment,
as interpreted in the Peabody Case, not
only applies the doctrine of reasonable use
as between riparian and appropriator, but
also as between an overlying owner and
an appropriator. The overlying owner in
this state has been held to have analogous
rights to those of a riparian. Katz v.
Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P.
766, 64 L. R. A. 236, 99 Am. St. Rep. 35;
Burr v. Maclay Rancho Water Co., 154
Cal. 428, 98 P. 260. Such overlying owner
is now subject to the same restrictions as
those applicable to riparian owners. The
doctrine of Miller v. Bay Cities Water Co.,
supra, in so far as it held, or has been in-
terpreted to hold, to the contrary was spe-
cifically repudiated in the Peabody Case,
supra.
[4] From the above analysis, it follows
that if the 1928 constitutional amendment
is applicable to this appeal, although passed
after the appeal herein was perfected, the
judgment in favor of the remaining ripari-
an and overlying owners must be reversed,
with instructions to the trial court to fix
such respondents' rights in accordance with
the law as it now has been fixed by con-
stitutional mandate. As already pointed
out, the finding that the riparians require
a "reasonable" amount of the surface flow
of the stream is clearly insufficient under
the new doctrine. Equally insufficient un-
der the new doctrine, and for the same rea-
sons, is that finding that "each of said
riparian owners has a prior, superior and
paramount right as against said defendant
to the entire natural flow of such stream
as against any diminution thereof
by the said defendant." This finding in the
absence of a finding as to what the needs
of each riparian is cannot be supported.


I -~ I


- -- ----- ,


986 Cal.






TULARE IRR. DIST. v. LINDSAY-STRATHMORE IR1R DIST.
45 P.(2d)


The further finding that each riparian re-
quires the "whole of the underground flow
of said stream to moisten said
land from beneath," etc., is not sufficient
under the new doctrine. The use of the
entire flow of a stream, surface or under-
ground, for subirrigation cannot be held
to be a reasonable use of water in an area
of such need as the Kaweah delta. Pea-
body v. City of Vallejo, supra.
We now pass to a determination of the
question as to whether the constitutional
amendment of 1928 is applicable to the
present appeal. The problem here pre-
sented differs radically from that presented
in the Peabody Case, supra. That case, as
is stated in the opinion, was not decided by
the trial court until June of 1929, the con-
stitutional amendment having become ef-
fective in November of 1928. The hold-
ing in that case that the trial court must
decide the cause in accordance with the
law existing when the judgment was enter-
ed is not decisive here. In the present
case, the action had been tried, judgment
entered, and the appeal perfected before
the constitutional amendment was passed.
We are, therefore, directly presented with
the question as to whether, in this case,
the law in existence at the time of the
judgment or the law in existence at the
time the appellate court decides the case
should prevail.
[5, 6] The effect, on an appealed case, of
a change in the law pending the appeal, has
given rise to many diverse and some con-
flicting decisions. Aside from questions
presented when rights are vested in reli-
ance on the lower court's decision, and
aside from questions presented where the
new statute expressly states whether it is
or is not to apply retrospectively, questions
which are not here presented, on the main
question as to whether the cause should be
disposed of according to the law in ef-
fect at the time judgment was rendered,
or to the law in effect at the time the
cause is disposed of on appeal, there is a
sharp diversion of authority. 4 Cor. Jur.,
p. 1119, 3109; see, also, Cooley, Consti-
tutional Limitations (8th Ed.) vol. 2, p.
790. California, apparently, has cases both
ways. In Hancock v. Thom, 46 Cal. 643,
and in D. I. Nofziger Lumber Co. v. Wa-
ters, 10 Cal. App. 89, 101 P. 38, without
adequate discussion, it was held that the
law in effect at the time the judgment was
rendered by the lower court was control-
ling, while in First National Bank v. Hen-


derson, 101 Cal. 307, 35 P. 899, it was held
that the appellate court must dispose of the
case in accordance with the law existing at
the time of its own decision. See, also, 2
Cal. Jur. p. 806, 474; 2 Cal. Jur., p. 972,
572. Whether these cases are in conflict
or can be reconciled, and what the better
rule may be in cases of appeals generally,
need not now be decided. In the class of
appeal here presented, there should be and
there is no question. The present action
involves an appeal from an injunction de-
cree, which, by its very nature, acts on the
rights of these parties in the future. The
very nature of the proceeding was to settle
for all time the rights of these parties to
the waters of the Kaweah delta. It
would be an idle gesture to affirm his
judgment in favor of the riparian respond-
ents, because correct when rendered, with
full knowledge that it is incorrect, under
existing law, and with full knowledge that,
under existing law, the decree as rendered
settles nothing so far as the future rights
of these parties are concerned. For this
reason, whatever may be the law applicable
to appeals generally, the rule is well set-
tled that on appeals involving injunction
decrees, the law in effect when the appel-
late court renders its opinion must be ap-
plied. In American Steel Foundries v.
Tri-City Central Trades Council, 257 U.
S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L.
R. 360, the plaintiff had secured an in-
junction in a labor dispute. Pending the
appeal, a statute was passed materially re-
stricting the use of the injunction in such
cases. The United States Supreme Court,
Chief Justice Taft writing the opinion, held
that the appeal must be determined under
the new statute. In 257 U. S. 184, at page
201, 42 S. Ct. 72, 75, 66 L. Ed. 189, 27 A.
L. R. 360, it is stated:
"The first question in the case is whether
section 20 of the Clayton Act [29 USCA
52] is to be applied in this case.
The act was passed while this case was
pending in the Circuit Court of Appeals
[238 F. 728]. In Duplex Printing Press
Co. v. Deering, 254 U. S. 443, 464, 41 S.
Ct. 172, 65 L. Ed. 349 [16 A. L. R. 196],
a suit to restrain a secondary boycott had
been brought before the passage of the act,
but did not come to hearing until after its
passage. It was held that because relief
by injunction operates in future and the
right to it must be determined as of the
time of the hearing, section 20 of the act
relating to injunctions was controlling in
so far that decrees entered after its pas-


CaL 987







45 PACIFIC REPORTER, 2d SERIES


sage should conform to its provisions.
[The Deering Case referred to involved
the same question that was presented in the
Peabody Case, supra.] The decree here
appealed from in the District Court had
been entered before the Clayton Act passed.
But the whole cause was taken up by the
appeal. The complainant had no vested
right in the decree of the District Court
while it was subject to review. *
The Circuit Court of Appeals was called
upon to approve or to change the decree
and was obliged, therefore, to regard the
new statute in its conclusion, and so are
we." The same conclusion was reached
by the same court in Texas Co. v. Brown,
258 U. S. 466, 42 S. Ct. 375, 66 L. Ed.
721. In that case, after an interlocutory
decree had been entered, and pending the
appeal, the state Legislature, apparently in
view of the very controversy involved in the
case, amended the law under which the de-
cree had been entered. The court held
that the appeal must be determined in ac-
cordance with the amended statute, stating
(258 U. S. 466, page 474, 42 S. Ct. 375,
378, 66 L. Ed. 721):
"Although passed after the decree below,
this act must be given effect in deciding
the appeal, since the case involves only re-
lief by injunction, and this operates wholly
in future."
[7,8] The only argument made by re-
spondents on this point is that neither the
Legislature, by statute, nor the people, by
constitutional amendment, has the power
to abridge, modify, destroy, reduce or limit
the vested riparian right and that if the
1928 constitutional amendment is intended
to reach this result it deprives respondents
of their property without due process of
law and deprives them of the equal protec-
tion of the law in violation of the Federal
Constitution. These arguments are com-
pletely answered by the reasoning found in
the Gin S. Chow and Peabody Cases supra.
Both of these cases hold that the amend-
ment in question was passed under and by
virtue of a reasonable exercise of the po-
lice power, and, as such, constitutes a law-
ful abridgment of the riparian right. That
the protection and conservation of the nat-
ural resources of the state is in the gen-
eral welfare and serves a public purpose,
and so constitutes a reasonable exercise of
the police power, is now so well settled
that no further citation of authority is nec-
essary. It, therefore, follows that no pro-
vision of the Federal Constitution has been


violated. As was said in the Peabody Case,
40 P.(2d) 486, page 491:
"In further clarifying the new state poli-
cy we have no hesitancy in doing so with-
out fear of infringing upon any provision
of the Federal Constitution. The attitude
of the Supreme Court of the United States
has been consistent in leaving the ques-
tion of private water rights, which do not
involve federal or interstate interests, to
the control of local state policies. United
States v. Rio Grande Dam & Irr. Co., 174
U. S. 690, 702, 703, 19 S. Ct. 770, 43 L. Ed.
1136; Hudson County Water Co. v. Mc-
Carter, 209 U. S. 349, 356, 28 S. Ct. 529,
52 L. Ed. 828, 14 Ann. Cas. 560; State of
Connecticut v. Commonwealth of Massa-
chusetts, 282 U. S. 660, 670, 51 S. Ct. 286,
75 L. Ed. 602."
We, therefore, hold that the 1928 consti-
tutional amendment is applicable to this
case, and, for that reason and reasons al-
ready discussed, the judgment, in so far as
it affects the various riparian and overlying
respondents, whose rights have not been
settled by compromise, or whose rights are
not hereinafter determined, must be re-
versed, with instructions to the trial court
to take evidence, and to find the quantity of
water necessary for the reasonable benefi-
cial uses of such respondents, and by prop-
er judgment protect such respondents in
that quantity; further, that the trial court,
in accordance with the mandate in the
constitutional provision, should incorporate
in its decree a declaration protecting such
respondents in the prospective reasonable
beneficial uses of the waters here involved,
unless such prospective right be condemned
in accordance with the principles herein-
after set forth. On such retrial, it should
not be necessary for these respondents to
prove the riparian nature of their respec-
tive properties, the evidence being ample to
support the findings and judgment in re-
spect thereto, and those portions of the
judgment will therefore be affirmed.
[9] There are several other matters in
reference to the riparian owners which
must be discussed. It will be remembered
that in its supplemental answer, filed over
10 years after the passage of the Water
Commission Act, defendant pleaded as a
special defense aimed at certain of the
riparian plaintiffs, the provisions of sec-
tion 11 of the Water Commission Act. The
contention is that these named parties have
lost their riparian right by reason of 10
)yars' nonuse thereof, the section in ques-


-a~a~-~s~ I~- rmr~La~a.r;nuP~-.l.ei~a~c~.~WIB


988 Cal.






TULARE IRR. DIST. v. LIXDSAY-
45 P.
tion specifically providing that such nonuse
for such period shall constitute a conclu-
sive presumption of abandonment, and
shall subject such waters to appropriation.
By subsequent pleadings, the defendant
raised the same defense as to all the other
riparian owners. The trial court found
that four of the named riparians (W. L.
Fisher, Henry Bente, G. W. King, and
Frank J. Brundage) had lost by such 10-
year nonuse any right to divert any water
from the surface flow of the streams, but,
nevertheless, granted such four parties an
injunction, evidently because it also found
that all riparians, including the named
four, were entitled to and used the whole
of the underflow of the streams for sub-
irrigation and to support the surface flow
of the streams. For the benefit of the trial
court on the retrial, it, therefore, becomes
necessary to determine the legal effect of
the defense predicated on section 11, and the
constitutionality of that section. In so fa
as the section attempts to declare that 10
years' nonuse, without an intervening use,
shall constitute an abandonment of the
riparian ri we think the section is un-
constitutional. This court, on at least
three occasions, at least by dicta, has in-
dicated its belief that the section is uncon-
stitutional. Herminghaus v. Southern Cal-
ifornia Edison Co., 200 Cal. 81, 117, 252 P.
607; Fall River Valley Irrigation Dist. v.
Mt. Shasta Power Corporation, 202 Cal.
56, 68, 259 P. 444. 56 A. L. R. 264: Scott
v. Fruit Growers' Supply Co., 202 Cal 47,
4. ZD P 1095. More important, however,
is the fact that such provision is contrary
to the letter and spirit of the 1928 consti-
tutional amendment, above discussed. That
amendment, while limiting the riparian as
against an appropriator, to reasonable ben-
eficial uses,.as likewise does section 11 of
the Water Commission Act. express pro-
tects the riparian not only as to his pres-
ent needs, but also as to future or prospec-
tive reasonable benehcial needs. Since this
is so, it would be incongruous and in viola-
tion of the spirit of the constitutional pro-
vision to hold that 10 years' nonuse, with-
out any intervening use giving rise to a
right by prescription, constitutes a com-
plete abandonment. Moreover, the ripari-
an right includes, of course, not only the
right to the surface flow as now limited,
but also to the underground flow of the
stream, subject to the limitations in the
1928 constitutional amendment. In the
present case, the trial court found that
every riparian was putting the underground


-ST1LATIIMORE IER DIST. Cal 9
(2d)
flow to beneficial uses. On the new trial,
it will become necessary, under the new
policy, to determine whether, in view of all
the circumstances, such beneficial uses are
reasonable. All defenses predicated on sec-
tion 11 of the Water Commission Act are,
therefore, removed from the case.
[10, 11] There is another matter in ref-
erence to certain of the riparian parties
that must be mentioned. As already stated,
as a special defense to the riparian re-
spondents, the defendant set forth the facts
required under section 534 of the Code of
Civil Procedure, for the purpose of having
the court, in the event that the court should
find that the riparians did not require all
the waters of the streams to which their
lands are riparian for their reasonable ben-
eficial uses, determine the damages such
riparians would suffer by reason of the tak-
ing of the excess over such requirements.
In other words, defendant sought to con-
demn, under the special provisions of sec-
tion 534 of the Code of Civil Procedure,
whatever right the riparians may have in
excess of their reasonable requirements.
The plaintiffs filed their respective state-
ments of rights, as required by section 534,
and impleaded numerous other persons and
corporations on the ground that their pres-
ence was required in order properly to de-
termine the questions presented. On De-
cember 11, 1920, the trial court made its
order requiring these persons and corpo-
rations to appear in the action. In response
to this order, many of those named appear-
ed and filed statements of their rights. On
April 12, 1923, another order was made
bringing in additional parties. Some of
these impleaded parties simply alleged that
as riparians they were entitled to the full
flow of the stream; others set forth the
quantity of water required for their needs;
others alleged they were entitled to a rea-
sonable quantity of water without specify-
ing the quantity; while all of the claim-
ants alleged that they will suffer damages
in various amounts, if the defendant be
permitted to pump 25,000-acre feet annual-
ly from the waters underlying the rancho.
The defendant duly answered these vari-
ous statements of rights, which answer al-
leged in substance that there was a surplus
over the reasonable needs of these parties
and available to appropriation. None of
the impleaded parties offered any evidence
at all. The trial court found that it is not
true that any of plaintiff riparians, or im-
pleaded parties has abandoned his riparian
rights except the four above mentioned.


--,,,, -I --







45 PACIFIC REPORTER, 2d SERIES


Although the court fully found the facts in
reference to the bringing into the action
of the impleaded parties, and although such
parties are frequently referred to in the
findings, apparently no specific findings de-
termining their rights were made. In the
conclusions of law, it is provided that "all
proceedings in this action based upon or
existing out of the reply to answer of the
plaintiffs herein who are riparian owners,
the statements of rights of all parties im-
pleaded herein and the answers of defend-
ant to such statement of rights, should be
dismissed," and this provision is carried
into the judgment. Of course, the court
did find that, except for certain extraordi-
nary flood waters, there was no surplus in
the delta from which the defendant could
take 25,000-acre feet annually, or any other
fixed quantity.
Both appellant and respondents present
lengthy arguments as to the constitutional-
ity of section 534 of the Code of Civil
Procedure, the respondents vigorously con-
tending that the section is unconstitutional.
We do not here find it necessary to pass up-
on the highly controversial and' serious
question as to the constitutionality of sec-
tion 534, for several reasons. In the first
place, so far as the impleaded riparians are
concerned, they did not become parties to
this controversy until after 1920. At that
time a public use had long since attached in
favor of appellant. In other words, so far
as the riparians who first became parties
to the action in and subsequent to 1920 are
concerned, the property involved, as against
them, had already been taken by appellant
and was being devoted to a public use. Un-
der such circumstances, the proceeding be-
came in fact an inverse condemnation suit,
governed by the principles reviewed by this
court in Collier v. Merced Irrigation Dis-
trict, 213 Cal. 554, 2 P.(2d) 790. See, also,
Peabody v. City of Vallejo, supra; City
of Los Angeles v. Pomeroy, 124 Cal. 597,
57 P. 585; Turner v. East Side Canal &
Irr. Co., 169 Cal. 652, 147 P. 579; New-
port v. Temescal Water Co., 149 Cal. 531,
87 P. 372, 6 L. R. A. (N. S.) 1098. The
appellant herein, therefore, had the right
to have the damages, if any, of these im-
pleaded riparians determined in this action.
In fact, on the new trial, the appellant, if
it be so advised, has the right to amend its
answer so as to condemn the entire riparian
right of these riparians, instead of just the
excess over the needs of these parties, as
the pleading now requests.


However, the above reasoning is not
applicable to all the riparian respondents.
The doctrine of inverse condemnation,
as set forth in the Collier Case, supra,
can be properly applied only where a
public use has attached. As to the orig-
inal riparian plaintiffs, whose rights have
not been compromised, such public use
did not attach to the quantity actually
used by them for reasonable beneficial
purposes prior to the filing of this ac-
tion. However, as was held in the Pea-
body Case, and reaffirmed earlier in this
opinion, the riparian as against an ap-
propriator, has two major rights: (1)
In the event a public use has not attached,
and in the absence of a condemnation suit,
he is entitled to an injunction to pro-
tect his prior right to the amount of
water he presently needs for reasonable
beneficial purposes; and (2) he is enti-
tled to a judicial declaration of his prior
right to whatever quantity he may in the
future need for such uses. As to such
prospective uses, however, it is obvious
that when, as here, the appropriator takes
the water and devotes the same to a
public use, prior to the time such pro-
spective needs arise, a public use has
intervened as to the quantity required for
such future uses. The appropriator may
not desire to appropriate the water and to
construct large and expensive works with
the possibility constantly in the offing that
the riparians, who have been protected by
a declaration of their rights in the wa-
ter for future purposes, will increase their
reasonable and beneficial use of the wa-
ter, so that ultimately, perhaps, none is
left for appropriation. The appropriator
may and probably would desire to con-
demn the riparians' right to use of the
water in the stream for these prospec-
tive purposes. No good reason suggests
itself why the appropriator should not be
permitted to do this in the injunction
suit by means of an inverse condemna-
tion. The same compelling reasons that
exist for permitting such a procedure
when the entire riparian right is sought
to be condemned likewise exists where the
appropriator simply desires to condemn
the right of the riparian to whatever ad-
ditional water he may later, need for
prospective reasonable beneficial purposes.
In both cases, the all important fact must
exist that a public use has attached, but
once that is present, this procedure seems
to us sensible and well calculated to pre-
vent multiplicity of suits and interminable


I a ~I


- II I I


990 Cal.





TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRRM DIST.
45 P. (2d)


delays. The above principles make it un-
necessary to pass upon the constitutional-
ity of section 534 of the Code of Civil
Procedure. That section attempts to pro-
vide a special type of condemnation pro-
cedure applicable only in water cases and,
by its own provisions, is limited to cases
where the defendant seeks to condemn
the excess over the "actual and neces-
sary beneficial uses" of the riparian.
The section was undoubtedly intended to
ameliorate the rule formerly prevailing
that a riparian as against an appropria-
tor was entitled to an injunction regard-
less of damage, but, under the new pol-
icy set forth in the 1928 constitutional
amendment, the rule has been changed
so that the necessity for the special pro-
cedure set forth in section 534 no longer
exists. It is true that the appropriator
may desire to condemn the right of the
riparian to the excess over his present
reasonable beneficial needs, but, as al-
ready pointed out, that result may be
achieved, under well settled principles of
equity, by an inverse condemnation suit,
without resort to the special provisions
of section 534.
[12,13] For the guidance of the trial
court on the retrial of this case, and
in future cases, the rule as to the burden
of proof under the new policy should be
stated. In the Peabody Case, supra, 40
P.(2d) 486, at page 498, it is stated:
"However, when one enters a field of
water supply and seeks by appropriation
to take water from such supply on the
claim that there is more than sufficient for
all reasonable beneficial uses by those who
have the prior and preferential right, it
would seem to comport with the principles
of fairness and justice that the appro-
priator, in whatever way the issue may
arise, should have the burden of proving
that such excess exists." This rule, plac-
ing the burden on the appropriator who
seeks to take water from a particular wa-
ter field to show that there is a surplus,
does not relieve the riparians and appro-
priators, who are already in the field, from
the burden of proving the quantity of
water that they have been using, and that
such amount is necessary for their rea-
sonable beneficial purposes. The rule
throws on the new appropriator the bur-
den of proving the existence of a sur-
plus from which it can extract the quanti-
ty it desires from either the surface or
subterranean flow without injury to the
uses and requirements of those who have


prior rights. In the present case, while
it is true the burden was on appellant
to prove the existence of a surplus, that
burden did not come into existence until
after the respondent riparians first proved
the amount required by them for reason-
able beneficial purposes. This primary
burden the riparians did not sustain. The
evidence as to the existence of a purport-
ed surplus will be discussed more fully
hereafter.
[14, 15] Also, for the guidance of the
trial court on the retrial, some mention
should be made of appellant's contention
that all the respondents, riparians and ap-
propriators alike, are barred from securing
an injunction in this case by reason of
their alleged laches. This argument was
not made in the trial court, but, in fact,
was first made in appellant's reply brief.
In the trial court and in its opening brief,
appellant urged that the interveners and
the impleaded parties were barred by rea-
son of the intervention of a public use.
The compromises above referred to have
removed from the present case all such
questions in reference to the interveners
and, so far as the impleaded parties are
concerned, that question has already been
disposed of in this opinion. Appellant's
present point is that, although admittedly
the action involved herein was season-
ably brought by respondents before a
public use had attached, nevertheless, all
respondents are barred from securing an
injunction, for the reason that respond-
ents failed, immediately after filing the
complaint, to apply for or to obtain a pre-
liminary injunction to prevent the public
use from attaching. Apparently respond-
ents did not apply for a preliminary in-
junction until some time in 1921. See
Tulare Irrigation District v. Superior
Court of Tulare County, 197 Cal. 649, 657,
242 P. 725. At that time, of course, the
water was being, and for several years
has been, devoted by appellant to a pub-
lic use. Appellant now argues that fail-
ure to apply for such preliminary injunc-
tion prior to the time the public use at-
tached, bars all the respondents from an
injunction. To state the contention is to
refute it.
Preliminarily, it should be stated that
the evidence in this case shows that re-
spondents notified appellant before it (ap-
pellant) sold its bonds or let any con-
. tract for the construction of its system
that it should not proceed with the pro-
posed work and warned it not to do so;


Cal. 991


~rr~a~Fa~------------- Ih~ad~E~r~CB~WWIR*







45 PACIFIC REPORTER, 2d SERIES


that the present action was commenced
within 40 days of the giving of that
notice and prior to the doing of any con-
struction work; that the action was dili-
gently prosecuted by respondents; that
the trial was in progress during the time
the construction work was performed;
that the appellant constantly and public-
ly contended that its pumping opera-
tions, as proposed, would not affect in.the
slightest degree or to any extent the sup-
ply of water to which respondents were
entitled; that for some time after the
second season's pumping had been com-
pleted appellant contended in its answer
that its pumping operations would not to
any extent diminish the flow of any of
the surface streams of the delta; and that
after the first judge who tried this case
was disqualified respondents continued dili-
gently to prosecute the action and se-
cured then a temporary injunction. In the
face of these facts appellant now urges
that because of the fact that respondents
did not apply for and obtain a prelimi-
nary injunction restraining appellant from
proceeding, respondents are now barred
from securing an injunction. This start-
ling conclusion is arrived at by certain
inferences made by appellant from the
decision in the case of Consolidated Peo-
ples Ditch Co. v. Foothill Ditch Co., 205
Cal. 54, 269 P. 915. The real parties in
interest in the above action were the ap-
propriators in the present action and ap-
pellant. The conclusion is not justified
by that or any other case relied on by
appellant. It is arrived at only by a mis-
application of the rule enunciated in the
Foothill Ditch Co. Case. In that case
the plaintiffs brought an action to en-
join the defendants from diverting water
from the Kaweah river at a point above
McKay Point. The Lindsay-Strathmore
Irrigation District, the real defendant,
sought to justify its proposed action by
reason of its stock ownership in various
ditch companies. After the action had
been pending a few months, the plain-
tiffs therein applied for and the trial court
granted a preliminary injunction to pre-
vent the threatened diversion pending trial.
The Lindsay-Strathmore Irrigation Dis-
trict appealed, and one of the technical
grounds urged by it on that appeal was
that no preliminary injunction should have
been granted, for the reason that no wa-
ter was flowing in the river when it was
applied for and no restraint was necessary.
In refuting this contention, this court,


among other things, pointed out the ex-
tensive preparations, then being made by
the Lindsay-Strathmore Irrigation Dis-
trict to divert the water as soon as it
should start flowing and then stated (205
Cal. 54, page 58, 269 P. 915, 918):
"In the presence of such preparations,
the plaintiffs could not afford to remain
passive until such time as the water rose
in the river to a height which would
render its actual diversion by these ap-
pellants possible, without risk of the charge
of laches in allowing the appellants' cost-
ly outlays, based upon a claim of right
to proceed."
Based upon the italicized portion of the
above quotation, appellant argues that this
court must have held in that case that a
preliminary injunction was proper "be-
cause, and only because, a failure to ap-
ply for such relief until the water had
been actually diverted for public use would
have subjected the plaintiffs in the ac-
tion to the bar of laches so far as in-
junctive relief was concerned." Appel-
lant's Reply Brief, p. 290.
Such conclusion is clearly a non se-
quitur. Obviously, all that this court
meant by the above quotation was that
an application for and the securing of a
preliminary injunction before the diver-
sion takes place is conclusive evidence
that a public use has not attached and
that plaintiffs have not been guilty of
laches, but the absence of such a request
merely subjects the plaintiff to the "risk
of the charge of laches." Ordinarily, the
filing of an action, with or without the
request for a preliminary injunction, be-
fore work has commenced, will prevent a
public use from attaching. Gurnsey v.
Northern California Power Co., 160 Cal.
699, 117 P. 906, 36 L. R. A. (N. S.) 185;
Miller & Lux v. Enterprise C. & L. Co.,
169 Cal. 415, 147 P. 567; Newport v.
Temescal Water Co., 149 Cal. 531, 87 P.
372, 6 L. R. A. (N.'S.) 1098; Conaway
v. Yolo Water & Power Co., 204 Cal.
125, 266 P. 944, 58 A. L. R. 674; Collier
v. Merced Irrigation District, supra; Pea-
body v. City of Vallejo, supra. A case
might well be imagined, however, where
the mere filing of an action, without dili-
gent prosecution thereof, might be held to
be laches and estop the plaintiffs. No
such state of facts is here presented.
Whatever the basis of the doctrine of the
intervention of a public use may be,
whether it be based on estoppel or pub-
lic policy (see discussion in the Peabody


I 1_


992 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMIORE IRR. DIST.
45 P.(zd)


Case, supra, 40 P.(2d) 486, page 496),
the facts in the present case are not
sufficient to raise the doctrine as against
the respondent riparians or appropriators,
except as elsewhere in this opinion in-
dicated.
We now pass to a discussion of the
various points raised by appellant in ref-
erence to the judgment in favor of the
plaintiff appropriators.
In reference to the appropriators, in
addition to the findings above discussed,
many of which are applicable both to
ripgrians and appropriators and, there-
fore, need not be repeated, the trial court
found that each of the corporate appro-
priators was entitled to a certain amount
of water measured by rate of flow, that
is, measured by cubic feet per second.
In fixing the award to each respondent
appropriator, the court, as already men-
tioned, divided the year into two 6 months'
periods. Period No. 1 covered the period
from February 1 to July 31, and period
No. 2 from August 1 to January 31.
In every case the amount of the award
for period No. 2 was one-half the amount
fixed for period No. 1. The following
table shows the respective awards, the
figures representing cubic feet per sec-
ond:

Amounts Awarded Appropriators From the St. Johns
River.


Name of Appropriator
Tulare Irrigation District
Tulare Irrigation Company
Lakeside Ditch Company
Jennings Ditch Water Company
Modoc Ditch Company
Uphill Ditch Company
Packwood Canal Company
Mathews Ditch Company
Goshen Ditch Company


Period
No. 1
175
57
400
20
60
30
150
20
40


Period
No. 2
87.5
28.5
200
10.
30'
15
75
10
20


(*It is to be noted that there Is apparently an er-
ror in the printed clerk's transcript in that the 30
cubic feet of water awarded the Mcdoc Ditch Com-
pany is entirely omitted from the findings, but it Is
quite clearly an error in transcription, inasmuch as
that quantity is included In the aggregate award.)


Amounts Awarded Appropriators from the
Kaweah River.
Period
Name of Appropriator No. 1
Consolidated Peoples Ditch Company 250
Fleming Ditch Company 12
Evans Ditch Company 47
Watson Ditch Company S8
Oakes Ditch Company 13
Persian Ditch Company 58
Farmers Ditch Company 150
Tulare Irrigation Company 40
Tulare Irrigation District 280
Elk Bayou Ditch Company 160
45 P.(2d)-63


Lower

Period
No. 2
125
6
23.5
19
6.5
29
75
20
140
8O


By the above awards the trial court
awarded to all of the respondent appro-
priators, collectively, 2,000 cubic feet per
second for period No. 1 and 1,000 cubic
feet per second for period No. 2, the
Lower Kaweah appropriators, as a group,
receiving slightly more than the St. Johns
appropriators. It is to be noted that the
Tulare Irrigation District and the Tulare
Irrigation Company appropriate from both
rivers.
In fixing the aggregate award at the
2,000-1,000-cubic foot per second levels,
the trial court apparently intended that
the quantity awarded each appropriator
was to be measured at the head of each
appropriator's diversion ditch. For pur-
poses of convenience, however, the trial
court provided that before appellant could
take any water not less than the total
aggregate award for all appropriators must
be in the stream immediately above Mc-
Kay Point. Each individual award is
to the effect that the named appropriator
is entitled to a specified quantity out of the
waters of the St. Johns or Lower Kaweah
rivers, or Mill or Cross creeks, as the
case may be, diverted through a designat-
ed ditch. The court then finds that "the
aggregate amount of water which the said
plaintiff appropriators as aforesaid have
the right to take, divert and use, as here-
inbefore found, is 2,000 cubic feet of wa-
ter per second, measured at the heads of
their respective ditches, or places of di-
version, as aforesaid, at all times between
the 1st day of February and the 31st day
of July, both dates inclusive, of each and
every year, and 1,000 cubic feet of water
per second, measured at the heads of their
respective ditches, at all times between
August 1st of each year and January 31st,
both dates inclusive, of the next succeed-
ing year, and that it requires and said
plaintiffs are entitled to have a flow of
water in the Kaweah River at and im-
mediately above the cement weir at said
McKay Point, where said Kaweah River
and St. Johns River divide, of not less
than 2,000 cubic feet of water per sec-
ond, at all times between February 1st
and July 31st, both dates inclusive, of
each year, and not less than 1,000 cubic
feet of water per second, measured at
said McKay Point, at all times between
August 1st of each year and January 31st,
both dates inclusive, of the next suc-
ceeding year, in order to supply and fur-
nish to said plaintiffs, appropriators as
aforesaid, at the heads of their said re-


Cal. 993


PLF I I I I -ie~- -"s a rr~-~rr ~ a







45 PACIFIC REPORTER, 2d SERIES


spective ditches, the said respective
amounts of water to which they are en-
titled."
The court also found "that by reason
of the physical facts herein set forth,
said McKay Point is a convenient and
appropriate place at which to measure the
flow of water in said Kaweah River at
and immediately above the cement weir
at McKay Point necessary to supply and
furnish to said plaintiffs, appropriators as
aforesaid, at the heads of their said re-
spective ditches, the said respective
amounts of water to which they are en-
titled as aforesaid."
Evidently, by these and other similar
findings, the trial court desired to fix
the quantity of water awarded to each
appropriator at the head of its diver-
sion ditch, but, for convenience, the
total award for all appropriators was to
be measured at McKay Point, many miles
upstream from the diversion ditches of
some of the appropriators. It is obvious
that, in addition to the 2,000-1,000 cubic
feet awarded to the appropriators as a
group, there must be added an appreciable
quantity to make up for seepage, evapora-
tion, and other conveyance losses between
McKay Point and the head of each diver-
sion ditch. What this transmission loss
would be for each appropriator is not
found by the court. Hereafter, in this
opinion when the 2,000-1,000 cubic feet
limits or the specific awards to each ap-
propriator are discussed, it must be re-
membered that such amounts must be
increased by whatever this conveyance loss
may ultimately be determined to be.
The trial court also found that the
specific amount of water awarded each
appropriator is the amount that is now
and has been for more than ten years
prior to the commencement of this ac-
tion "appropriated, used, reasonably neces-
sary and required at all times when said
quantity or more flowed therein, and all
of the water flowing therein, when less
than said amounts flowed therein," and
is the amount required "and reasonably
necessary to such appropriators for irri-
gation, domestic and other useful and
beneficial purposes, and for livestock to
drink"; that the aggregate award of 2,-
000.1,000 cubic feet per second "and in-
cluding all lesser flows of water reaching
the respective ditch heads or places of
diversion of said plaintiffs is the quantity
of water which has produced, and will


produce, the respective amounts of wa-
ter appropriated, beneficially used and
reasonably needed and required by said
respective plaintiffs for their respective
beneficial uses and purposes"; that if any
of the appropriators prior to the com-
mencement of this action "failed to use
the respective amounts of water which
they respectively are herein found to
possess the right to take, appropriate and
divert, it was because said supply of said
river was insufficient in consequence of
the natural shortage of water and the
fluctuations in the flow of said rivers";
that the appropriators have at times di-
verted in excess of their respective rights
as found by the trial court; that at
times the diversions of plaintiffs have been
"diminished to amounts below said re-
spective rights by the pumping of water
on the Rancho de Kaweah by defend-
ant."
The court also found several times, and
expressed the finding in different ways,
that there are certain extraordinary flood
waters occasionally found in the two
rivers here involved, to which the plain-
tiff appropriators have no right; that
"such extraordinary storm waters and ex-
traordinary flood waters as do occur in
said Kaweah River, and its said branches
and continuations, occur at such infre-
quent intervals and for such short peri-
ods of time, that the same do not con-
stitute a dependable supply of water, or a
supply that can be beneficially used for
irrigation purposes, unless the same be
impounded and accumulated over a term
of years for a regulated use"; that the
rate of flow and amount of water in the
rivers varies greatly and fluctuates rapid-
ly; that "the flow of the said rivers in
the months from February to September,
inclusive, is derived largely from the melt-
ing of the snows on the Sierra Nevada
Mountains and the period of maximum
supply and use is and has ordinarily been
within the months of May and June; that
in the months from October to January,
inclusive, the flow is and has been de-
rived largely from rains falling upon the
watershed of said river; that the months
of April, May, June and July provide a
more dependable supply of water than
the other months of the year and are
months of greater use and requirement of
water for irrigation of lands than are the
other months of the year; that the flow
of said rivers in said other mouths is
less dependable and subject to fluctua-


994 Cal.






TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
.45 P.(2d)


tions and variations of more violence, and
is frequently interspersed with high flows
of varying height and short duration";
that the pumping by defendant on the
rancho will diminish and has diminished
the amount of the underground percolating
waters in the basin; that such pumping
has diminished and will diminish the sur-
face flow of both rivers by induced seep-
age; that said pumping creates and has
created a cone of depression in the un-
derground water table that extends beyond
the limits of the rancho, and which ex-
tends under the channel of the St. Johns
river for a distance of approximately
5 miles, and under the channel of the
Lower Kaweah river for a distance of
approximately 4 miles; that said cone of
depression also extends under and has
affected some designated diversion ditches
of some of the plaintiffs; that there is no
surplus in the delta from which the de-
fendant can take 25,000 acre feet annual-
ly, or any other fixed sum.
The above constitutes but a brief sum-
mary of the most important findings and
is not intended as a complete summary,
but simply to indicate the general trend
of the lower court's decision. We pass
now to a discussion of the specific points
made by appellant.
[16-18] Appellant very strenuously urg-
es that, by the above findings, the respond-
ent appropriators as a group have been
awarded a continuous flow of 2,000-1,000
cubic feet of water per second; .that such
a quantity of water, except in the year
1906, has never been produced in the
Kaweah watershed; that if the 2,000-1,000
cubic feet of water award be translated
into the number of acre feet that would be
produced by such a rate of flow flowing
continuously during the periods involved,
the plaintiff appropriators have been
awarded 1,081,080-acre feet per year; that
the "average" yearly run-off of the Kaweah
river is about 453,000 acre feet; that, so
far as period No. 2 is concerned, in
which respondent appropriators have been
awarded a continuous flow of 1,000 second
feet, never in the memory of man has
there flowed that quantity of water in the
stream for longer than 12 days in any 1
year, and, on the average, that quantity
has been reached only for 31/2 days each
year during this 6-month period; that, as
for period No. 1, never, in the memory of
man, has the flow of the Kaweah river in
any year exceeded or equaled 2,000 sec-


ond feet in more than 102 days out of the
181 days in this period; and that the aver-
age over the many years of record is but
16 days. Based upon the above premises,
appellant argues that the evidence indisput-
ably shows that none of the respondent ap-
propriators has ever diverted the quantity
of water awarded to it and that it can be
demonstrated to a mathematical certainty
that .the awards are excessive. Appellant
also urges that the trial court committed
error in making its awards in second feet
and contends that such awards should have
been made in acre feet. We are of the
opinion that appellant's arguments on these
points are without merit. They are based
entirely on the theory that the findings and
judgment here involved award to each ap-
propriator a quantity of water that could
be provided by a continuous flow during
each period of the number of second feet
awarded. A reading of the specific find-
ings in reference to the amount allotted
to each appropriator, and the findings in
reference to the appropriative right of the
respondents, as a group, lends some color
to this contention. Thus, in fixing the ag-
gregate amount allotted to all of the ap-
propriators, the court finds that they have
the right to take 2,000 cubic feet of water
per second "at all times between the 1st
day of February and the 31st day of. July"
of each year, and the same language is
used for period No. 2. In other findings
similar language is employed. The judg-
ment uses equally strong language. This
language, when read literally and without
reference to other portions of the findings
and judgment, does apparently award a
continuous rate of flow for the periods in-
volved. It is our opinion, however, that
when the findings are read as a whole and,
particularly, when the findings are read in
connection with the findings concerning
the physical characteristics of the Kaweah
river, they cannot be reasonably interpret-
ed as awarding a quantity measured by a
continuous rate of flow. We are of the
opinion that the findings, properly inter-
preted, award a maximum rate of flow
and that the court found that when the riv-
er flows at that rate, including all lesser
flows, there will be produced the quantity
that the court found respondents have here-
tofore appropriated and put to beneficial
uses. The many findings heretofore quoted
in this opinion, portions of which have been
italicized, clearly indicate to us that this is
the proper interpretation to be placed on
the awards.


Cal. 995


~CI --- I ~II- ---I II II ---







45 PACIFIC REPORTER, 2d SERIES


This is essentially respondents' position
on this point. They concede that they, as
a group, have never diverted a million acre
feet annually, but contend that the trial
court simply fixed a maximum rate of di-
version for each appropriator, which rate,
if taken when available and with all lesser
rates, would produce the annual quantity
heretofore diverted by these appropriators.
It must be remembered that the trial court
was here dealing with an extremely prac-
tical situation. It was faced with the ne-
cessity of in some way fixing the various
appropriative rights of the respondents,
many of which have been vested for over
50 years, and these rights had to be fixed
in a stream the flow of which is extreme-
ly variable, varying, as has already been
pointed out, not only from year to year,
but from day to day, and even from hour
to hour. In such a stream the respond-
ents could not, and the evidence shows that
they did not, appropriate a fixed quantity
each year. The amount appropriated de-
pended upon the quantity in the stream.
In such a stream, where the appropriations
of respondents have varied from year to
year and season to season, the trial court
could not fairly award a specific quantity,
measured solely in acre feet, without treat-
ing unfairly these respondents whose rights
long antedate those of appellant, or with-
out fixing the award far in excess of the
reasonable needs of respondents and so in-
juring appellant. If the flow of the
Kaweah river were even and continuous
at the 2,000-1,000 cubic feet per second
levels, then it is true, that under the find-
ings and judgment here involved, respond-
ent appropriators, as a group, would re-
ceive over a million acre feet annually, a
quantity of water far in excess of the rea-
sonable needs of respondents, and a quan-
tity of water far in excess of that ever
produced by the Kaweah watershed, except
in the year 1906. Such a quantity of wa-
ter would make the delta virtually a
f swamp. If the flow of the Kaweah river
were even and continuous, or even rea-
sonably so, then perhaps the award should
have been made of a specific quantity.
Eden Township Water Dist. v. City of
Hayward, 218 Cal. 634, 24 P.(2d) 492.
But here each appropriator has had to take
the water when, as and if it was in the
stream. It was undoubtedly for this rea-
son that the trial court made its award by
fixing the maximum rate of diversion in
terms of cubic feet per second as distin-
guished from acre feet, and then express-


ly found that this maximum rate of flow,
including all lesser flows, is the rate of
flow that will produce and has produced
the respective amounts heretofore appro-
priated. It is true that this leaves the ex-
act quantity awarded to each appropriator
uncertain, and it is likewise true that when-
ever possible the courts require that the
appropriative right be fixed with certainty
(Eden Township Water Dist. v. City of
Hayward, supra; City of San Bernardino
v. City of Riverside, 186 Cal. 7, 198 P.
784), but the uncertainty here involved is
caused by the fact that respondent appro-
priators, because of the physical conditions
already described, have been unable to ap-
propriate a fixed quantity. The quantity
appropriated each year, as already stated,
depended upon the flow of the streams, and
that was and is highly variable. For the
foregoing reasons, we do not think that
the awards involved herein can reasonably
be interpreted to be continuous awards in
the sense argued for by appellant, nor are
we of the opinion that the trial court com-
mitted reversible error in fixing the awards
in cubic feet per second instead of acre
feet. However, inasmuch as we are of
the opinion that the awards must be re-
versed for other reasons hereinafter ap-
pearing, and, in view of the retrial, the fol-
lowing suggestion is pertinent. It is our
opinion that, in view of all the physical
facts, it would be fairer to all concerned
if the awards to the respondent appropria-
tors on such retrial be made in cubic feet
per second, together with an ultimate limi-
tation in acre feet. Appellant, for reasons
already stated, cannot legitimately com-
plain of the rate of flow awards so long
as the flow of the Kaweah river remains
as it has been for the past 30 years. But
if, from natural causes, the flow of that
river should be increased, there can be no
doubt that, under the rate of flow awards
here made, the respondents as a group
would be entitled to all that increase up to
over a million acre feet annually. Admit-
tedly that.quantity has not and cannot be
put to a beneficial use by respondents.
Moreover, it is conceivable, that appellant
may purchase the rights of some of the
respondent appropriators, or purchase
stock in some of the respondent companies,
in which event it would have a very ma-
terial interest in having the ultimate quan-
tity to be received by those who have pri-
or claims fixed with reasonable certainty.
It is for these, and other reasons that we
believe that the awards should be fixed in


996 Cal.






TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR, DIST.
45 P. (d)


cubic feet per second, with a maximum
limitation in acre feet, measured, of course,
by the maximum number of acre feet used
by each appropriator in the past.
Before discussing the other attacks
made by appellant on the. awards, some
mention should be made of the law appli-
cable to the determination of an appro-
priator's rights.
[19-22] An appropriator, as against
subsequent appropriators, is entitled to the
continued flow to the head of his ditch
of the amount of water that he, in the
past, whenever that quantity was present,
has diverted for beneficial purposes, plus a
reasonable conveyance loss, subject to the
limitation that the amount be not more
than is reasonably necessary, under rea-
sonable methods of diversion, to supply the
area of land theretofore served by his
ditch. The appropriator is limited to rea-
sonable beneficial uses. A reading of the
many cases on the law of appropriation in-
dicates a gradual and consistent tightening
of the rule measuring the rights of appro-
priators. The early cases measured the
appropriator's right by the capacity of his
ditch, but that rule has long since been
repudiated in this state. Smith v. Haw-
kins, 120 Cal. 86, 52 P. 139. As the pres-
sure of population has led to the attempt
to bring under cultivation more and more
lands, and as the demands for water to ir-
rigate these lands have become more and
more pressing, the decisions have become
increasingly emphatic in limiting the ap-
propriator to the quantity reasonably nec-
essary for beneficial uses. Senior v. An-
derson, 115 Cal. 496, 47 P. 454; Id., 130
Cal. 290, 62 P. 563; California P. & A. Co.
v. Madera Canal & Irr. Co., 167 Cal. 78,
138 P. 718; Northern California Power
Co. v. Flood, 186 Cal. 301, 199 P. 315;
Oliver v. Robnett, 190 Cal. 51, 210 P. 408;
Pabst v. Finmand, 190 Cal. 124, 211 P. 11;
Eden Township Water Dist. v. City of
Hayward, supra. If the appropriator uses
more than the amount so required, he
gains no right thereto. An excessive di-
version of water for any purpose cannot
be regarded as a diversion for a beneficial
use. In so far as the diversion exceeds
the amount reasonably necessary for bene-
ficial purposes, it is contrary to the policy
of the law and is a taking without right
and confers no title, no matter for how
long continued. Joerger v. Pacific Gas &
Electric Co., 207 Cal. 8, 276 P. 1017; Big
Rock Mutual Water Co. v. Valyermo


Ranch Co., 78 Cal. App. 266, 248 P. 264.
In determining what is a reasonable quan-
tity for beneficial uses, it is the policy of
the state to require within reasonable lim-
its the highest and greatest duty from the
waters of the state. California P. & A.
Co. v. Madera Canal & Irr. Co., supra.
However, an appropriator cannot be com-
pelled to divert according to the most
scientific method known. He is entitled to
make a reasonable use of the water ac-
cording to the general custom of the local-
ity, so long as the custom does not involve
unnecessary waste. Joerger v. Pacific Gas
& Electric Co., supra.
[23-26] In a case, such as the present
one, where prior appropriators are at-
tempting to secure an injunction against a
subsequent one, the action is in effect one
to quiet the title of the prior appropriator.
The burden of proof is on the prior ap-
propriator, in such action, to show by a
preponderance of the evidence, every ele-
ment of the right claimed by him. Proof
of long continued use of a definite quanti-
ty, however, under the proper circum-
stances, may raise a presumption the use
was necessary, for it is not reasonable to
suppose that one would destroy or impair
the value of his land by the use of an ex-
cessive amount. Joerger v. Pacific Gas &
Electric Co., supra; California P. & A.
Co. v. Madera Canal & Irr. Co., supra;
Campbell v. Ingram, 37 Cal. App. 72S, 174
P. 366; Stinson Canal & Irr. Co. v. Le-
moore Canal & Irr; Co., 45 Cal. App. 241,
242, 188 P. 77. After the prior appropria-
tor has satisfied this burden, subject to the
above limitation, then the burden shifts to
the new claimant to show by a preponder-
ance of the evidence that, after providing
for the rights of all prior claimants, there
is a surplus in the water field from which
it can take the amount claimed by it. It
must constantly be kept in mind that in an
action such as this, just as in any other
quiet title suit, the plaintiffs must recover
upon the strength of their own title and
not upon the weakness of defendant's title.
It should be here pointed out that the
respondent appropriators are not what has
sometimes been called "periodic appropria-
tors," that is, they are not intermittent ap-
propriators. Respondent appropriators
are all corporations whose main function
is to distribute the water owned by them to
their respective stockholders or consum-
ers. To do this properly each corporation
requires a continuous flow, when the water


Cal. 997


~(R-l I -CI' I I rI I ~-- I I II -C~C ~1I~PSP----P-s"-







45 PACIFIC REPORTER, 2d SERIES


is required at all. The individual consum-
er is a periodic appropriator, but the cor-
poration of which he is a member, or from
which he is entitled to water, is not. Ap-
pellant expressly concedes that respondent
appropriators are not periodic appropria-
tors, but does strenuously contend that
such appropriators' rights and needs are
seasonal.
[27] We pass now to a discussion of the
main point urged by appellant that re-
spondent appropriators have never divert-
ed the quantity of water awarded to them.
After reading all of the evidence set forth
in the supplements filed herein, and after
reading the major portion of the evidence
contained in the transcript on this point
and not contained in the supplements, we
are convinced that the evidence produced
by respondents overwhelmingly establishes
that, except in years of extraordinary flow
and except for certain exceptional spurts,
the respondent appropriators herein, as a
group, have used practically the entire
flow of the Kaweah river during the
height of the irrigation season for rea-
sonable beneficial purposes. We are clear-
ly of the opinion that during at least 4
of the months included within period No.
1 respondent appropriators have for many
years used, as a group, the entire flow of
the river up to 2,000 cubic feet per second,
whenever it was available, and all lesser
flows when that quantity was not avail-
able. As found by the trial court, the
months of May and June are the months
of greatest supply and use. The trial
court also found that the months of April,
May, June, and July provide a more de-
pendable supply and are months of greater
use and requirement than are the other
inonths of the year. The evidence is over-
whelming that during this 4-month period
for many years prior to 1916 there has
been a scarcity of water in the rivers and
an insufficient amount to meet respond-
ents' needs. It would serve no useful pur-
pose to review the voluminous testimony
on this point. It is during these months
that appellant would like to pump water
from the delta to the lands within its
borders. The evidence and findings show
appellant's great needs in this period. But
appellant's needs cannot justify this court
in depriving other property owners of
their property rights long since vested.
During this 4-month period the supply is
not only greater than in other months,
but it is a more dependable and continuous
supply. It is the supply resulting from the


snow run off. The supply for the major
portion of the balance of the year results
largely from the rains falling on the delta
and the foothills, and this supply is flashy
and undependable.
However, as to period No. 2, and partic-
ularly for the months of October, Nov'em-
ber, December, and January thereof, we
agree with appellant that the evidence does
not support either the findings that re-
spondent appropriators as a group divert-
ed 1,000 second feet and all lesser flows
when it was available, or that the amount
that was actually diverted was all put to
beneficial uses. We are also of the opin-
ion that the evidence does not support
the findings that each appropriator divert-
ed for reasonable beneficial uses the spe-
cific number of cubic feet per second and
all lesser flows when such were available,
awarded to it. In discussing the ques-
tion as to the extent, benefits and need of
winter irrigation, it must be remembered
that, although for convenience the trial
court at times treated the respondent ap-
propriators as a group, each respondent
appropriator must recover, if at all, upon
the strength of the evidence offered by it.
Evidence as to use of water by one ditch
company cannot prove how much another
ditch company diverted. As an indispen-
sable part of its case, each respondent ap-
propriator was required to prove the
amount that it had actually used in' the
past and, subject to the limitations already
discussed, that the amount so diverted was
devoted to and reasonably required for
beneficial uses under reasonable methods
of' diversion. The necessity and benefits
of winter irrigation might well be proved
by general testimony not applicable direct-
ly to each ditch company, but no such
general testimony can supply evidence as
to the amount diverted by each respondent
and what the amount diverted was used
for. Such proof on behalf of each re-
spondent appropriator was indispensable.
Even at the risk of repetition, we repeat
that each respondent must recover on the
strength of its own title and not on the
weakness of appellant's.
The inquiry as to the sufficiency of the
evidence to sustain the findings in refer-
ence to the awards for period No. 2 natu-
rally divides itself into three parts: (1)
Whether the evidence supports the find-
ings as to the amount awarded each appro-
priator; (2) whether the evidence sup-
ports the findings that all of the water
used in this period was put to beneficial


I I


11811 11-- I lIIl III 1- ~-~-


998 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


uses; and (3) whether the amount used by
respondents and their methods of diver-
sion are, under all the circumstances, rea-
sonable. These three problems will be
discussed in order.
First, as to the sufficiency of the evi-
dence to support the specific awards made
to each respondent appropriator in period
No. 2. In the following summary of the
evidence, we refer only to the testimony of
respondents' witnesses, and will try to
summarize the strongest evidence to which
we have been referred, or which our own
investigation has discovered, in favor of
each respondent.
On the Lower Kaweah river, the first
diversion below McKay Point is that made
through the canal known as the Consoli-
dated People's ditch, supplying water for
the Consolidated People's Ditch Company
and the Elk Bayou Ditch Company. Be-
cause of its physical location, it secures
the longest and most sustained diversion
of any appropriator on the Lower Kaweah
river. The parties hereto stipulated that
the maximum area irrigated by the Con-
solidated People's Ditch Company in any
1 year with water from this ditch was
14,569 acres, of which 4,088 acres are de-
voted to alfalfa, 4,445 acres to orchards
and vineyards, 4,265 acres to field crops,
and 1,771 acres to wild pasture. Field
crops include gardens, beets, beans, corn,
grain, pumpkins, melons, and other miscel-
laneous crops of like nature. Many stock-
holders of this ditch company were called
as witnesses. J. C. Sullivan testified that
he irrigated his prunes once a year in
March or April; his grain once or twice a
year, usually in May or June; that he ir-
rigated his alfalfa three or four or five
times a year; that the last irrigation he
gave his alfalfa was usually in July.
Many others testified to the same general
effect. W. A. Sims, Jr., testified that he
irrigated his prunes in the fall and in Feb-
ruary or March, when the ditch water
came down; that most of his fall irriga-'
tion was not secured from the ditch but
from pumps; that in ordinary years he
sometimes got irrigation water in Novem-
ber and December and that such water
was used for the purpose of irrigation;
that sometimes "for several days at a
stretch," he got ditch water in January
and February, which was used to irrigate
fruit trees and alfalfa. E. F. Hart, super-
intendent of this ditch and president of the
company, testified that it was the custom
to irrigate alfalfa whenever they could


get the water, even in December, January,
and February; that alfalfa can be and is
irrigated by the stockholders of this com-
pany "any month of the year"; that it is
the custom to irrigate late peaches twice,
in the spring and later in the summer, as
late as August and September. Many wit-
nesses testified that it was not usual to get
any water from this ditch after July or the
first part of August. During period No.
2, from August 1 to January 31, this ap-
propriator has been awarded 125 cubic feet
of water per second, and all lesser flows.
We can find no evidence that that quantity
of water ever flowed in this ditch in this
period, nor can we find any evidence that
this quantity and all lesser flows was ever
diverted by this appropriator. Apparently
none of the stockholders in this ditch tes-
tified as to the area irrigated in the winter
months, nor as to the amount used in these
months. It must be remembered that this
appropriator, as well as the other respbnd-
ent appropriators, with the exception of
the Tulare Irrigation District, is a mutual
water company and that it does not use,
as a corporation, any of the water it di-
verts, but that it uses water only through
its stockholders. The evidence above re-
ferred to establishes that when water oc-
curs in the ditch in the winter months,
some of the stockholders use it for irriga-
tion, but that evidence does not establish
the quantity diverted, or that 125 cubic
feet of water per second ever flowed in
this ditch in these months, or the area ir-
rigated with what water was used. Ever
under a most liberal interpretation, such
evidence is far too general, under the cas-
es hereinafter referred to, to sustain the
findings complained of. We realize that
this evidence had to be directed to a period
prior to 1916 and that appellant has been
taking the water since 1918 and that the
trial did not occur until 1922. Obviously,
the evidence could not be as positive and
certain as might be desired, but the above
testimony is far too vague and indefinite
to support a quiet title decree of a definite
quantity of water in this period.
The Elk Bayou Ditch Company, as al-
ready stated, diverts through the Consol-
idated People's ditch. It was stipulated
that the maximum area irrigated by this
ditch company in any one year was 5,617
Acres, of which 4,150 acres were devoted
to alfalfa, 250 acres to orchards and vine-
yards, 776 acres to field crops, and 461 to
wild pasture. In the briefs, we are not
referred to any testimony by either of the


Cal. 999


~~ _~I~_







45 PACIFIC REPORTER, 2d SERIES


parties as to the specific practice as to win-
ter irrigation by this company. H. C.
Heitzeg, president of this company, testi-
fied that this appropriator got the major
portion of its water through the People's
ditch; that it received its water by virtue
of stock ownership in the Consolidated
People's Ditch Company; that they got
some little water from Outside creek and
occasionally a little from Lewis creek, but
that he could remember only 1906 as a
year when his company had received Lew-
is creek water; that it received its water
from the People's ditch only after the pri-
or claims of the Consolidated People's
Ditch Company were satisfied; that he
could remember in "three good years
probably 15 or 16 or 17 years"
ago, when he had irrigated as late as the
4th of July,'and even later, that he was
the last one to irrigate on this ditch; that
it was not the general custom of the stock-
holders of this ditch company to irrigate
as late as July. Apparently the water
ceases to be used by the stockholders of
this company in normal years in June.
For whatever irrigation is carried on aft-
er that, the water is procured, not from
the ditch, but from pumping plants. This
company has been awarded 80 cubic feet
per second and all lesser flows in period
No. 2. Such award, based, as it must
be, on past use, finds absolutely no sup-
port in the record.
The Lakeside Ditch Company diverts
from Cross creek, the continuation of the
St. Johns river, and has been awarded 200
cubic feet of water per second, and all
lesser flows in period No. 2. The maxi-
mum extent of the acreage under this
ditch is in dispute, appellant conceding
that 17,56712 acres are irrigated from this
ditch, this respondent contending for a
larger area. According to appellant's ad-
mission, 5,688 acres of the above total are
devoted to alfalfa, 3391/2 acres to orchards
and vineyards, 6,171 acres to field crops,
and 5,369 acres to wild pasture. This re-
spondent offered evidence that a larger
maximum area was served by this ditch,
but the above figures give an approximate
idea of the nature of the crops grown and
general division of the area among them.
The superintendent of this ditch, J. B.
Freeman, testified that it was the custom
to irrigate grain once from April to about
June 1; that some water usually comes into
the ditch in February, "some little water,
not a great bulk," and some in March;
that sometimes they get some water as


early as December; that the winter water
is the result of rains; that it comes in
spurts; and that it is not dependable; that
the snow run off constitutes the depend-
able supply and starts usually around April
1 and continues to about the middle of
July; that the stockholders irrigate their
alfalfa from the ditch about three or four
times a year and irrigate their orchards
twice a year; that the water seldom runs
in the ditch after July; that he had been
superintendent of the ditch for 4 years
and had been engaged in farming and ir-
rigating from the ditch for 11 years; that
"we have never had any water since I
have been in the Lakeside county, only in
one instance, after July"; that "since I
have been superintendent, the latest that
we have had water in the ditch-I think
last year [1921] was the latest, I think it
went out on the 9th of July"; that prior to
becoming superintendent he could remem-
ber one year-1915 or 1916-"when we
had some water in August, but I couldn't
say exactly how much at that particular
time"; that he irrigated his alfalfa as soon
as water was in the ditch any time after
the first of the year; that occasionally they
got a "little bit of water" in December.
E. W. Kerr testified that he had been
familiar with the Lakeside ditch since 1875
and that he irrigated from it; that from
1877 to 1902, on various occasions, he had
acted as ditch tender for this appropria-
tor; that water usually comes into the
ditch in February; that occasionally spurts
occur in January, but that that is not the
usual thing; that the irrigators from this
ditch do not expect to get a run of irrigat-
ing water until the snow water comes from
the mountains; that the snow run off usu-
ally comes in April and extends to about
the 15th of July; that he had never noticed
any irrigators irrigating grain in the fall
of the year in the Lakeside territory for
the reason that, "No, never had the water
in the fall of the year."
E. H. Kimble, another irrigator from
this ditch, testified that they sometimes got
rain water in December and January, but
when pressed as to quantity stated, "Well,
sometimes we-would get-there are periods
for a few days when we have quite a run
of water, but it don't last long, generally."
Other stockholders testified in equally gen-
Seral language as to December and January
irrigation water. The evidence as to the
use of water from this ditch from Septem-
ber to December was very sketchy and
even January was not very clear. The


__


1000 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


evidence above quoted falls far short of
sustaining a finding that all during period
No. 2 this appropriator used the quantity
awarded to it and all lesser flows. If the
water was not there in any month or for
any other appreciable period, it should not
have been awarded.
The Watson Ditch Company diverts
from the Lower Kaweah river and has
been awarded 19 cubic feet per second and
all lesser flows in period No. 2. The par-
ties could not agree as to the maximum
area irrigated by this ditch, the appellant
conceding that 1,828Y2 acres were irrigated,
this respondent claiming and proving a
larger area. The crops grown here are
similar to those grown on other parts of
the delta, consisting of alfalfa, orchards,
and vines, field crops and wild pasture.
E. R. Pennebaker, an irrigator from this
ditch, testified that he irrigated his or-
chards twice, in April or May, then in
June or July; that alfalfa is irrigated four
times; that he could not count on getting
a fall irrigation for his fruit; that from his
observation irritations from this ditch
started in April and ended in August or
September; that in 1916 the water started
to run in the ditch in November and ran all
winter; that he did not remember the
quantity but that it was a good run. He
did not testify that he or any one else used
this water. In reference to this testimony,
respondents argue: "It must be obvious if
there was a fairly good run of water in the
Watson Ditch during all the winter, as Air.
Pennebaker testified, that the stockholders
of that ditch must have used it even if Mr.
Pennebaker personally did not use it. It
certainly could not continue running down
the ditch all winter without being used.
None of respondents' ditches have waste-
ways." This negative inference is not suf-
ficient to sustain a right to divert any fixed
quantity of water during this period.
John N. Haggler testified that he used
water "indifferently" from both the Watson
and Persian ditches; that he usually would
irrigate his alfalfa four or five times a
year, starting in December or January, but
that if he irrigated in December he would
not do so in January. Other than this very
general testimony as to use in December
and January, there is no evidence that the
irrigators under this ditch ever diverted
any quantity in the winter period, or what
area, if any, was irrigated in this period.
The. Mathews Ditch Company diverts
from the St. Johns river and has been
awarded 10 cubic feet per second and all
45 P.(2d)-63%


lesser flows in period No. 2. The parties
stipulated that the maximum area ever ir--
rigated with water from this respondent
was 928 acres, of which 692 were devoted
to alfalfa, 14 to orchards and vineyards,
192 to field crops, and 30 acres to wild
pasture. Morgan Rush testified that he had
irrigated from this ditch for 18 years and
owns over a quarter of the area irrigated'
from this ditch; that when he first knew'
the ditch "for a few years there it had
water pretty late and some years pretty
near all of the summer"; that in the early
years it had water for nearly all the year,
which water was used for irrigation; that
the irrigators irrigate some in the fall
months, when they had the water, and
"some in the winter"; that he irrigates his
pasture once or twice a year, but never
later than June.
Fred Van Gordon, an irrigator from this-
ditch and superintendent of the same, tes-
tified that he had lived at his present home
for 12 years; that for the first couple of
years after moving to his present abode, the
ditch "never did go dry"; that it had water
in it the year round; that he did not know
whether that water was used-"I know I
used my part of it whenever I got it," for
irrigation purposes; that at present he
sometimes got water in December; that
winter irrigation "did not seem to hurt his
alfalfa any and killed the gophers out."
Other irrigators testified that in their recol-
lection the ditch on occasion had water in
it all the year round, which water was used
for irrigation, but none of them estimated
the amount of water in the winter period
nor the area irrigated. Other stockholders
testified they never got water after Septem-
ber. Mrs. S. E. McCain testified that al-
though she could remember a few years
when the water ran the year round, she
never used it the year round. Such evi-
dence is insufficient to support the finding
here under attack.
The Modoc Ditch Company diverts from
the St. Johns river and has been awarded
30 cubic feet per second, and all lesser
flows, in period No. 2. It was stipulated
that the maximum area served by this ditch
is 3,590 acres, of which 2,000 acres are
devoted to alfalfa, 84 acres to orchards and
vineyards, 850 to field crops, and 656 acres
to wild pasture. John Riggin testified that
he had been superintendent of this ditch
since 1900; that he ordinarily commenced
his duties in March or April and stopped
when "the water stops," which is usually
in August; that "once in a great while"


Cal. 1001








45 PACIFIC REPORTER, 2d SERIES


they got water in January or December;
that the stockholders at the lower end of
the ditch liked to get water for irrigation in
the winter. Timothy Hayes testified that
he sometimes got water in January, and
that when it did come it was always used;
that in "one or two years" he could re-
member getting water in December. John
Perry testified that he used winter water
when he could get it for irrigation and
that it was good for his crops. John B.
Rivers testified that he had irrigated his
alfalfa in January and that such was the
common practice. Other irrigators from
this ditch testified that they never irrigated
their alfalfa in December, January, or
February, and still others that they did not
practice winter irrigation. The evidence
shows that the irrigators from this ditch
have used some winter water, but what the
amount used or the area irrigated there-
from may be is not disclosed.
The Uphill Ditch Company, the Jennings
Ditch Water Company, and the Packwood
Canal Company, all diverters from the St.
Johns river, are treated as a group by re-
spondents, and we will follow that course
here. The Uphill Ditch Company has been
awarded 15 cubic feet per second in period
No. 2, the Jennings Ditch Water Com-
pany 10, and the Packwood Canal Company
75. The maximum area irrigated from the
Uphill ditch was stipulated by the parties
as being 1,873 acres, 1,148 being in alfalfa,
124 in orchards and vineyards, 107 in field
crops, and 494 in wild pasture. The testi-
mony as to actual practice as to winter ir-
rigation under this ditch was very sketchy
indeed. Monroe Rush, superintendent of
this ditch, testified that he had been ac-
quainted with the ditch for 30 years; that
since he had been superintendent (from
1909 or 1910 to 1916) and again just prior
to his- testimony (which was in 1922) he
closed the headgates of this ditch when the
snow water ceases in August and kept them
closed until about February of the next
year.
According to appellant, the Jennings
Ditch Water Company furnishes water to
but 399 acres, this respondent claiming a
larger area. The area is mainly devoted to
the growing of alfalfa and field crops, with
some acreage devoted to orchards and vine-
yards and a small area in wild pasture.
George Bollinger, who had used water
from this ditch for 15 years and who also
received water from the Watson ditch, tes-
tified that he used water whenever it was
present; that the earliest that he had ever


received water from the ditch under dis-
cussion was February; that he could not
remember ever getting water from either
of the ditches after July. Peter Fleutsch,
superintendent of the ditch and also an ir-
rigator therefrom, with 16 years' ex-
perience, testified that he could remember
two years when he got water as late as
August. Ernest Langdon testified that
sometimes stockholders of this ditch do not
require all the water in the ditch and per-
mit some to flow down Mill creek; that he
tried to irrigate his prunes in the fall;
that he got water from the Wutchumna
ditch as well as from the Jennings ditch.
The Packwood Canal Company, accord-
ing to the stipulation of the parties, serves
water to a maximum area of 3,000 acres,
1,460 acres of which are devoted to alfalfa,
536 to orchards and vineyards, 916 acres to
field crops, and 79 acres to wild pasture.
No satisfactory evidence of. any kind was
offered on the question of winter irrigation
under this ditch. E. H. Kimble, an ir-
rigator under this ditch, testified that he
did not irrigate his orchards at all from
the canal and that he irrigated his alfalfa
from the canal but once or twice a year;
that for the past 10 years [1912-1922] "we
haven't had a great deal of water in Pack-
wood the Packwood is a short
stream of water you know, we do only get
high water, that is all we get"; that most
irrigators in this section use pumping
plants for irrigation. WV. H. Wilbur, a
farmer who had irrigated from this ditch
since 1906, testified that before installing
his pumping plant in 1914, he irrigated his
alfalfa but once a year from the ditch-
sometimes twice; that from 1917 to 1921
he had no water at all from Packwood;
that he had a "good run" in 1916 and a
short run in 1921, from which he irrigated
25 acres; that occasionally water for irri-
gation was in the canal as late as June or
July; that a "good run" was had in 1922
in the summer; that he got probably half
of his irrigation water prior to 1916 from
the Tulare Irrigation District. J. F. Car-
roll, who had known the Packwood canal
since 1887, testified that prior to 1916 "we
would get as many as three runs"; that
there were some years "we.would not get
any at all and some years we would get one
run." Not one word of testimony was of-
fered that this ditch, in the memory of any
witness, ever had any water during period
No. 2, and yet the trial court awarded this
appropriator 75 cubic feet per second and
all lesser flows for this period.


I I III


1002 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


[28] Respondents concede that "as to the
respondents Jennings Ditch Water Com-
pany, Uphill Ditch Company and Packwood
Canal Company there seems to have been
little testimony offered as to the actual
practice of winter irrigation over these
particular ditches." The respondents argue,
however, that there were many witnesses
from other portions of the delta who testi-
fied that fall and winter irrigation was a
matter of common practice on the delta.
They urge that the trial court was dealing
with a large number of respondent ap-
propriators who were grouped together in
a common' cause. Based on these premises,
it is then urged that "testimony from wit-
nesses in different parts of the delta that
winter irrigation was a common practice
and was beneficial was sufficient
to justify the trial court in awarding water
to the Uphill Ditch Company for the same
months that it awarded it to the other ap-
propriators who made more specific proof.
The same is true in reference to the Jen-
nings Ditch Water Company and the Pack-
wood Canal Company. There was such an
abundance of evidence as to winter irriga-
tion on the Kaweah Delta that it was not
essential that every one of the appropria-
tors present specific evidence on that ques-
tion. If appellant, who admits the prior
and superior right of all these appropria-
tors to any right held or asserted by it,
claimed that any of these appropriators had
abandoned the water for the months of
November, December and January, the
burden was upon it to prove such abandon-
ment, and no attempt was made by appel-
lant in that direction." No cases are or
can be cited to sustain such a conclusion.
Such a conclusion is based on several mis-
conceptions of the law applicable to the
facts involved herein. As repeatedly stated
in this opinion, each respondent appropria-
tor was in effect attempting to quiet its title
to a certain quantity of water as against
appellant. Although each respondent ap-
propriator had a common cause as against
appellant, for purposes of ascertaining the
quantity of water heretofore used by each
appropriator, each appropriator had the
burden of proof of showing by a prepon-
derance of the evidence the amount it had
diverted in the past. Evidence offered by
one appropriator on this issue could not
help any other appropriator. Evidence as
to custom and usage on the delta generally
could not tend to show that any one ap-
propriator in the past had actually diverted
any specific quantity. Moreover, it was not
incumbent on the appellant, as stated in the


concluding portion of the above quotation,
to prove a negative. The affirmative on
this issue rested with respondents. We
find no evidence at all that these three ap-
propriators ever appropriated the quanti*
ties awarded them, together with all lesser
flows, in period No. 2. The findings in this
regard are totally unsupported.
The Evans Ditch Company diverts from
the Lower Kaweah river and has been
awarded 23.5 cubic feet per second in
period No. 2. The parties could not agree
as to the maximum area irrigated from this
ditch, appellant conceding that at least
2,481 are so irrigated, respondent contend-
ing for a larger area. The crops grown
are similar to those under the other ditches,
with about 400 acres devoted to wild
pasture. Charles H. J. Hausch, an irriga-
tor under this ditch, testified that he need-
ed the water as often as he could get it
and oftener than he did get it; that he
needed it throughout the year; that at least
one year he got water throughout the year,
which water was used for irrigation; that
he tried, when water was available, to ir-
rigate fox tails in winter for winter feed;
that he irrigates alfalfa four times a year,
grain and corn, once. G. L. Caldwell, su-
perintendent of the ditch, testified that
water came down the ditch in the fall and
winter and that it was used to irrigate
crops; that he apportioned the water
among the stockholders whenever it was
present in the ditch; that sometimes the
water started to run in December and con-
tinued until August; that he closed the
headgate of this ditch at the end of the
irrigation season, apparently for the pur-
pose of cleaning the ditch. Creed Archer
testified that irrigators from this ditch used
the water whenever it was present in the
ditch and had used it for irrigation every
month in the year. The evidence offered
on behalf of this respondent did show that
some water was present in this ditch in the
winter period and that it was used for ir-
rigation. No evidence, however, was of-
fered as to the amount that was diverted
during the winter period, or the area that
was irrigated.
The Tulare Irrigation District diverts
from both rivers. It has been awarded 87.5
cubic feet per second from the St. Johns
river and 140 cubic feet per second from
the Lower Kaweah river and all lesser
flows in period No. 2. The maximum area
ever irrigated in any one year by water
diverted by this respondent was stipulated
to be 12,199 acres, of which 7,905 are in


Cal. 1003







45 PACIFIC REPORTER, 2d SERIES


alfalfa, 602 in orchards or vineyards, 2,823
in field crops, and 869 in wild pasture. C.
H. Slaughter, superintendent of the dis-
trict, testified that as a general thing they
could get only one irrigation a year from
the canal of the district; that they sup-
plemented the canal water with pumping
plants; that they irrigate alfalfa and the
orchards every month in the year (ap-
parently from the pumping plants). J. B.
Tingley, a former ditch tender for the dis-
trict, testified that in 1915 the water started
in the ditches of this respondent in April
and ceased in July. C. H. Morris testified
as to the benefits of winter irrigation and
that he got water from the canal in Feb-
ruary, 1922, from which he irrigated 12
acres. As to this appropriator, respondents
concede "there is little testimony in the
record specifically bearing upon the subject
of winter irrigation from the canal system
of Tulare Irrigation District, but there is
testimony as to the benefits of winter ir-
rigation." Obviously, an award of 227.5
cubic feet per second and all lesser flows
cannot be upheld on such testimony.
The Tulare Irrigation Company likewise
diverts from both streams. It has been
awarded 28.5 cubic feet per second from
the St. Johns river and 20 cubic feet per
second from the Lower Kaweah river and
all lesser flows in period No. 2. The
maximum area irrigated with water fur-
nished by this company has been stipu-
lated to aggregate 5,284 acres, of which
1,588 are in alfalfa, 942 in orchards and
vineyards, 2,279 in field crops, and 475 in
pasture. H. A. Scott, superintendent of
the ditch of this appropriator and an ir-
rigator therefrom, testified that usually the
water ceases to run in this company's ditch
in June or July; that "one year we ran up
into August, but generally, it quits in July";
that he never ran water in the ditch in
September, October, or November; that he
had irrigated from the ditch and knew
others who had likewise done so in De-
cember, January, and February. R. E.
Hess, an irrigator under this ditch, testified
that, "I think the earliest run we ever got
was in February from-utp to about, some
years, as late as the first of August, per-
haps just a little before that"; that they
had never got an "irrigating run" of water
prior to February, but did occasionally get
"spurts" before that. Walter N. Goins, an-
other irrigator, testified that they could
profitably use irrigation water any month
in the year; that prior to 1916, when they
had a "little extra water" they would ir-


rigate in the winter "but not very much";
that they always irrigated when they had
the water; that he could not state the num-
ber of times he had irrigated in the winter
prior to 1916; that he probably irrigated
in the winter "a couple of times" between
1907-1917. Again, we find no evidence at
all as to the amount diverted in the past or
the area irrigated with what was diverted.
Evidence that they could use water if they
had it, of course, cannot sustain a finding
awarding a specific rate of flow and all
lesser flows which must be based on past
use.
The Goshen Ditch Company diverts from
the St. Johns river and has been awarded
20 cubic feet per second and all lesser
flows during period No. 2. The maximum
area irrigated by water furnished by this
appropriator was stipulated to be 1,867
acres, of which 720 are devoted to alfalfa,
2 to orchards and vineyards, 545 to field
crops, and 600 acres to wild pasture. E. Y.
Logsdon, an irrigator under this ditch and
one of the directors of this appropriator,
testified that in 1912 no water at all ran in
the ditches of this company; that in 1913
the water ran but 8 or 10 days; that in
other years the ditch normally goes dry
about the end of June; that the water came
into the ditch in January, 1922; that in his
11 years' experience he had never known
that to occur before; that if the water is
available it is beneficial to irrigate in Jan-
uary and he has done so with water pumped
from wells; that they irrigate alfalfa as
late as November, apparently from wells.
Such testimony is totally insufficient to
show that any definite quantity was ever
diverted for any purpose during the period
here involved.
The Farmer's Ditch Company diverts
from the Lower Kaweah river and has
been awarded 75 cubic feet per second and
all lesser flows for period No. 2. The par-
ties agreed that the maximum area ever
served by this appropriator was 7,365 acres,
of which 2,850 are in alfalfa, 1,378 in
orchards and vines, 2,840 in field crops,
and 297 in wild pasture. Frank Rhoades
testified that he had been familiar with this
ditch since 1900; that in 1913 "there was
maybe a week of water in January"; that
then the water ceased flowing and did not
commence again until March or April;
that on a "general average" the water
ceased flowing in this ditch between the
20th of June and the 10th of July; that in
1915 the water started in January and ran
until July; that there was no winter run


_


i--.~~i. e I -- ---


1004 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATIIOIRE IRR. DIST.
45 P.(2d)


in 1916 or 1918, a little in 1917. During
the course of this witness' testimony, while
he was discussing the benefits of winter ir-
rigation, the trial court stated: "I do not
want to arbitrarily limit the examination,
but do you think yourselves that you have
gone far enough into the benefits of winter
irrigation on alfalfa? We have had it for
two weeks." We can agree with the trial
court, as already stated in this opinion, that
the benefits of winter irrigation can be
shown by general testimony, and that testi-
mony that alfalfa was benefited by winter
irrigation under one ditch would sustain a
finding that it is beneficial under other
ditches similarly situated, but we do not
agree with respondents that evidence that
winter irrigation was practiced under one
ditch can justify or sustain a finding
awarding a specific quantity to another
ditch. There is no evidence at all to sus-
tain the finding here under attack.
The Persian Ditch Company diverts from
the Lower Kaweah river, and has been
awarded 29 cubic feet per second, and all
lesser flows, in period No. 2. Appellant con-
cedes that this ditch serves at least 1931
acres, respondents contending for a larger
area. Alfalfa and field crops are the princi-
pal crops grown, with an appreciable area
devoted to orchards and vineyards and a
relatively small area to wild pasture. T. A.
Elliott, an irrigator from this ditch and
formerly president of the board of directors
of this appropriator, testified that he had
been familiar with and had intimate knowl-
edge of the Persian Ditch since 1898; that
he irrigated alfalfa 3 to 6 times a year, corn
twice, orchards in October or November and
in the spring (February or March) and
again in July; that they irrigate alfalfa
whenever they can get the water, but winter
irrigation of alfalfa is not practiced much
because the water is not there to be used;
that he does not irrigate alfalfa from pumps
in the winter because it is not good practice
"to irrigate alfalfa too much during the cold'
weather,-that is simply my opinion
*"; that he had some recollection of
getting a "flow of water" in some years in
November and December, "but that is not
what I term an irrigating season because the
water with us in the ditches is not usually
a continuous flow where it can be said to be
run as an irrigating ditch; the first man
who can grab the water probably gets it be-
cause there is no ditch tender on the ditch"
in the winter months; that, although he
knew of times when the water had come in
December, January, and February, "very


infrequently if at all" was there enough to
irrigate all the lands entitled to water from
this ditch. J. F. Putnam, former superin-
tendent of this ditch, testified that the length
of time the water ran in this ditch varied
from year to year; that "there was one year
(between 1904 and 1908) that it run pretty
near the whole season; of course, the latter
part of it they did not irrigate much, but it
run for stock water"; that he could not
remember what year that was. Again we
find a complete lack of evidence to establish
this appropriator's claim that by past use it
has established a right to divert in period
No. 2, 29 cubic feet per second and all lesser
flows. There is no evidence at all as to the
amount or quantity or rate of flow diverted
in the past, nor is there any evidence as to
the area irrigated in the winter season.
The Oakes Ditch Company diverts from
the Lower Kaweah river and irrigates a
maximum of 1,022 acres, of which 216 are in
alfalfa, 237 in orchards and vineyards, 287
in field crops, and 282 in wild pasture. Re-
spondents refer us to no testimony support-
ing the finding awarding this appropriator
6.5 cubic feet per second and all lesser flows
in period No. 2. The only testimony offered
in reference to this ditch was apparently that
of Byron W. Allen, who testified that he had
known this ditch since it was built; that hd
irrigated alfalfa four times a year; that
that number of irrigations was enough; that
in June they generally got a sufficient head
for irrigation purposes; that in July and
August the supply of water is generally
short. We have been referred to no testi-
mony at all that there ever was diverted any
quantity at all from this ditch for winter
irrigation. The finding under attack is
totally unsupported.
The Fleming Ditch Company also diverts
from the Lower Kaweah river and, accord-
ing to the stipulation of the parties, irrigates
a maximum area of 1,014 acres, of which
372 are in alfalfa, 408 in orchards and vine-
yards, 84 in field crops, and 150 in wild pas-
ture. Apparently but one witness was called
to testify as to this ditch, U. D. Switzer,
manager of the ditch since 1885 and ac-
quainted with it since 1879. He testified
that in a good year "I have seen the water
run in the Fleming Ditch up to the 1st of
October"; that then the water was turned
out of the ditch to clean it and after cleaning
it the water started to run again; that when
it would start depended on the rain; that
sometimes it started to run in November or
December and some years not until Febru-
ary; that in many years, which he enumer-


Cal. 1003







45 PACIFIC REPORTER, 2d SERIES


ated, water ran in the'ditch in November
and December and ran continuously the rest
of the season; that orchards were irrigated
late in the fall or early winter; that alfalfa
was irrigated whenever they could get the
water; that he could not tell the amount of
water in the ditch in these winter runs, "that
varies." We find no evidence that this ap-
propriator, during period No. 2, appropriat-
ed 6 cubic feet per second and all lesser
flows.
We have referred to the evidence in refer-
ence to each corporate appropriator at some
length. Every one of the witnesses referred
to above was called as a witness for re-
spondents, and we have tried to select the
strongest testimony in favor of respondents.
Such evidence falls far short of establishing
the first element required to prove a right
gained by appropriation, i. e., that the quan-
tity awarded was actually, in the past, di-
verted and used by the one claiming the
right. In not one case was there any evi-
dence at all that any specific quantity had
been diverted in period No. 2 by any one ap-
propriator, nor was there any evidence as
to the area actually irrigated in the winter
period. The evidence does show in refer-
ence to some of the ditches that when water
was present it was used, but not how much
was used; that water was not often there,
particularly in October, November, Decem-
ber, or January; that some ditches never
did have any winter water; that some ap-
propriators could use more water, if they
had it. Such evidence is not Sufficient under
the authorities, to sustain a finding awarding
a specific rate of flow and all lesser flows,
for a definite period. In Pabst v. Finmand,
190 Cal. 124, page 133, 211 P. 11, 15, this
elementary rule was restated as follows:
"Claimants, to gain a right to the use of a
definite amount of water, must show that
the quantity of water awarded them has
been actually diverted, that it was applied to
a beneficial use, and that the amount claimed
was reasonably necessary for such use." In
discussing evidence somewhat similar to that
produced here, and in holding such evidence
insufficient, the court, in the Pabst Case, su-
pra, 190 Cal. 124, at page 134, 211 P. 11, 15,
pointed out that "although there is testi-
mony that defendants used all they wanted,
there is no testimony to prove the use of
any specific quantity of water for any par-
ticular time." In Northern California Pow-
er Co. v. Flood, 186 Cal. 301, 304, 199 P.
315, 317, it is stated, "In order to gain a right
to the water the diverter must actually use
it, and the quantity used measures the extent


of his right." See, also, Turner v. East Side
Canal & Irr. Co., 169 Cal. 652, 147 P. 579;
California, etc., Co. v. Madera Canal & Irr.
Co., 167 Cal. 78, 138 P. 718; Haight v.
Costanich, 184 Cal. 426, 194 P. 26; Cohen v.
La Canada Land, etc., Co., 151 Cal. 680, 91
P. 584, 11 L. R. A. (N. S.) 752; Smith v.
Hawkins, 120 Cal. 86, 52 P. 139; Senior v.
Anderson, 130 Cal. 290, 62 P. 563.
[29] It must be remembered that ap-
pellant herein has an important legal in-
terest in having the rights of respondents
fixed, as a maximum, at the amount diverted
by such respondents in the past. The appel-
lant is the owner of about 1,100 acres of
water bearing land in the delta, which land
is so situated and its physical characteristics
are such that it is and can be used as a
natural underground reservoir. As the
owner of such overlying land, the appellant
has the legal right to extract water there-
from and to convey the same to distant lands
for beneficial purposes, subject always to
the condition that prior rights are not in-
terfered with or injured thereby. Burr v.
Maclay Rancho Water Co., 154 Cal. 428,
98 P. 260; Newport v. Temescal Water Co.,
149 Cal. 531, 87 P. 372, 6 L. R. A. (N. S.)
1098; Katz v. Walkinshaw, 141 Cal. 116,
70 P. 663, 74 P. 766, 64 L. R. A. 236, 99 Am.
St. Rep. 35. The appellant, therefore, has a
vital interest in having the rights of each
prior claimant fixed and determined at the
amount that prior claimant has, in the past,
actually diverted. It is no answer to say,
as do respondents, that appellant did not
prove that any quantity flowing in the two
rivers was wasted. The burden was on re-
spondents to show the amount they had di-
verted, not on appellant. Nor is it an an-
swer to appellant's contentions on this point
to say, as do respondents, that, as a group,
they must have used all the water in the two
rivers, because there are no wasteways on
any of the ditches and, therefore, the water
must have been used. Assuming the evi-
dence would support such a finding, had it
been made, such evidence would not justify
a specific award in any quantity to any par-
ticular appropriator in this period. As al-
ready pointed out, appellant, as a matter
of law, was entitled to have each respondent
appropriator's right determined by the
amount actually diverted by that appro-
priator in the past. The respondents can-
not, on this point, be considered as a group
-each one must be considered individually
-and its title to the water can be quieted
only upon the evidence offered by it. The


I I I L-.


~sm


1006 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATILIIORE IRR. DIST.
45 P.(2d)


reasons for this have already been discussed
at length.
[30] It should also be pointed out that the
evidence shows that each appropriator clos-
es its headgate for between two weeks to a
month each year. No water should be
awarded any appropriator during any pe-
riod when it is not using it.
For the foregoing reasons, we are of the
opinion that the awards cannot be sustained
and that the judgment based thereon must
be reversed.
We are also of the opinion that the evi-
dence does not entirely support the findings
that all the water that was used in the winter
period (whatever the amount may have
been) was put to beneficial uses. Prelimin-
arily, it should be stated that, whatever
quantity an appropriator has actually divert-
ed in the past, he gains no right thereto un-
less such water is actually put to a reason-
able beneficial use. 26 Cal. Jur. 93, 286.
What is a beneficial use, of course, depends
upon the facts and circumstances of each
case. What may be a reasonable beneficial
use, where water is present in excess of all
needs, would not be a reasonable beneficial
use in an area of great scarcity and great
need. What is a beneficial use at one time
may, because of changed conditions, become
a waste of water at a later time.
On the subject of the purposes to which
the winter water was put, there was con-
siderable evidence introduced by respond-
ents, the trial court, in fact, at least once
suggesting that it had heard enough on this
point.
[31] Many of the witnesses produced by
respondents were extremely vague as to the
benefits of winter irrigation. One of them
testified that winter irrigation "did not seem
to hurt my alfalfa any and killed the gophers
out; and I think where you irrigate early
that way your alfalfa comes better." An-
other testified that from winter irrigation
"the first benefit is you get rid of all your
gophers, if you can irrigate in cold weather,
or the spring-you get rid of your gophers
and soak your land up thoroughly, and when
the warm weather comes it starts the alfalfa
to grow." Still another testified that he
irrigated in December and January for the
purpose of drowning out gophers and that
such was the principal purpose of irrigating
at that time, together with the purpose of
starting the fox tail and wild feed. Another
stated, "A man will always irrigate his al-
falfa in the winter season if it is not rain-
ing, it helps to kill the gophers." Another,


CaL 1007


"We surface irrigate to rid ourselves of the
gophers if you irrigate in the early
spring you drown lots of them, freeze them
to death." Another gave it as his reason for
irrigating in winter that "every time we irri-
gate we kill gophers the best sea-
son of the year to kill gophers is with cold
water, irrigate in cold weather and kill
them. The same thing with squirrels. You
irrigate the squirrels in cold weather, in
February, he gets wet and comes out and
freezes to death." Many other quotations
could be made to the same effect. A great
many of respondents' witnesses seemed to be
of the opinion that the only reason they ir-
rigated during the winter season was to ex-
terminate these pests. It seems quite clear
to us that in such an area of need as the
Kaweah delta the use of an appreciable
quantity of water for such a purpose cannot
be held to be a reasonable beneficial use.
This seems to us so self-evident that no fur-
ther discussion of the point is necessary.
We, therefore, hold that whatever quantity
of water was used by respondents solely for
this purpose during the winter period was
not devoted to a beneficial use and that, in so
far as the finding of the trial court now un-
der discussion is based on such use, it is un-
supported by the evidence.
However, there was considerable other
evidence introduced by respondents, clearly
indicating that some of the water used by
them in this period was used for reasonable
beneficial purposes. Many practical irriga-
tors, as well as experts, testified to this ef-
fect. Some testified that from their ex-
perience winter irrigation caused the plants
to start active growth earlier in the spring,
thus assuring a larger and better crop; oth-
ers that it stores moisture in the soil so that,
if there is a scarcity of water later in the
year, the plants are sustained; others that
it provides green feed for cattle in the win-
ter months; others that by winter irrigation
there is produced an extra cutting of alfal-
fa; others that it strengthens the first buds
and sustains the trees. There is considera-
ble evidence in the form of government re-
ports, showing the benefits of winter irriga-
tion in this and similar areas. All this evi-
dence indicates that some of the water used
in the winter months was put to beneficial
uses.
[32] Appellant argues that the evidence
shows that winter water is produced by rains
falling in the foothills and on the delta
at infrequent intervals and comes in spurts
(which is the fact) and contends that since
it cannot be predicted when such spurts will







45 PACIFIC REPORTER, 2d SERIES


occur, or how much water they will produce,
they cannot be deemed to be a reliable source
of supply and cannot be deemed to be put to
beneficial purposes. We cannot follow the
logic of this argument. Such argument, if
sound, would necessarily result in the con-
clusion that one could never gain an appro-
priative right to the waters of a variable
stream. If the respondents have used a
definite quantity df water in the winter
months for beneficial purposes, when such
quantity was in the stream, they are clearly
entitled to be protected, even though the
amount cannot be predicted with certainty,
or is of infrequent occurrence.
[33] This argument as to winter spurts is
somewhat similar to another argument ad-
vanced by appellant, which is equally with-
out merit. Appellant argues that in consid-
ering the beneficial use of water in any wa-
ter area, the appropriators therein can ac-
quire only an appropriative right to a quan-
tity of water equal to some amount slightly
over the mean low average produced in the
watershed. Appellant contends that in any
watershed where the lands are surface ir-
rigated, only that area can be economically
put under production that can be irrigated
by the "average" yearly run off, less a large
margin of safety. Any diversion in excess
of the average yearly run off, less a margin
of safety, cannot, according to appellant,
ever be put to a beneficial use. In other
words, appellant contends that it does not
matter what quantity the appropriators as a
group actually have diverted in the past, and
put to what ordinarily would be beneficial
uses, they cannot gain any right to an
amount in excess of the average annual run
off, less a margin of safety. Such a rule
finds no support in the cases. It may be that,
in a stream with a reasonably even and con-
tinuous yearly flow, an appropriator can
gain no right to extraordinary additions to
that stream. We do not decide that point.
But in reference to a stream such as the
Kaweah river, no such rule could possibly
be applied. There is no such thing as an
"average" run off of that stream. The
United States Geological Survey from 1903
to 1921 made continuous flow measurements
at Three Rivers, upstream a few miles from
McKay Point. These records show that in
1912 the seasonal run off was 207,410-acre
feet. In 1906, the run off was 1,088,440-acre
feet. In 1916, the run off was 762,160-acre
feet, while in 1917, it was 471,470-acre feet,
and in 1919, 229,700-acre feet. In the last
year preceding the trial (1921), the run off
was 355,387-acre feet. The other years


showed great variations within the maxi-
mum of 1906 and the minimum of 1912.
Such a stream has no "average" run off.
Moreover, appellant's argument could be ap-
plied only where the prior appropriators use
the water to irrigate permanent crops such
as orchards and vineyards. Such crops, if
they were solely dependent on surface irri-
gation derived from the Kaweah river,
which they are not, necessarily would be
economically limited to an area that could be
irrigated by an amount of water reasonably
to be expected each year. But such an argu-
ment can have no application to an area
where about two-thirds of the total area is
devoted to annual crops. As already noted,
the most dependable supply from the Ka-
weah river is from the snow run off in the
spring. Long prior to planting time, the
farmers of the delta have accurate informa-
tion as to the snow pack in the mountains
and can reasonably estimate the amount and
duration of the spring run off, and can and
do plant their annual crops accordingly.
The argument of appellant on this point
is totally without merit and need not be con-
sidered on the retrial. The respondent ap-
propriators are entitled to be protected in
the amount they have heretofore diverted,
when it was present, for reasonable benefi-
cial uses under reasonable methods of use
and diversion.
The third element necessary for the ac-
quisition of a right by appropriation is that
the water must be diverted under reasonable
methods of use and reasonable methods of
diversion. Appellant spends many pages of
its briefs in an attempt to show that the
quantity of water each appropriator has
heretofore diverted throughout the year is
greatly in excess of the quantity actually
necessary to supply the beneficial purposes
of the appropriator and contends that such
excessive use of water has resulted in an in-
jurious high water table with the creation of
alkali and deterioration of the soil. Appel-
lant further contends not only that there
is an excessive use of water, but also that re-
spondents' methods of diversion are waste-
ful. We are clearly of the opinion that both
these points are without merit.
First, as to respondents' alleged excessive
use of water. We do not find it necessary to
review in detail the evidence on this point.
Appellant concedes in its reply brief that
"as might be expected, the evidence of the
opposing parties as to the effect of the use of
water upon the Kaweah Delta in the
amounts heretofore diverted by the respond-
ent appropriators, in so far as it created un-


----r,


1008 Cal.







'TULARE IRR. DIST. v. LINDSAY-STRATHMORE IRR. DIST.
45 P.(2d)


toward conditions is conflicting."
Appellant spends many pages reviewing the
testimony of its experts, tending to show
that there was an excessive use of water on
the delta. Stripped to its essentials, this
argument is simply that testimony offered by
it is more credible than that offered by re-
spondents. Respondents offered evidence in
abundance, both from practical irrigators
and from experts, indicating that, under'the
system of irrigation there prevailing, the
quantity used was reasonably necessary.
Appellant's attack on this ground, cannot be
sustained. Testimony as to damage to the
soils of the delta, alleged to have been caused
by the excessive use of water, with a result-
ing high water table, was highly conflicting.
From reading the expert testimony present-
ed by appellant, one would be led to believe
that the Kaweah delta is rapidly becoming
either a swamp or an alkali waste, while the
experts for respondents would have us be-
lieve that the delta is a veritable Garden of
Eden. In fact, the expert evidence was so
conflicting that, even when these experts
attempted to describe the physical conditions
surrounding specific stations in the delta,
it is only by a reference to the number of the
station that it can be ascertained that the ex-
perts are talking about the same spot. The
evidence amply supports respondents' con-
tentions on this point. On this general sub-
ject of excessive use of water, we deem it
pertinent to refer to what was said in Stin-
son Canal & Irr. Co. v. Lemoore Canal &
Irr. Co., 45 Cal. App. 241, 252, 188 P. 77, 82:
"There is this, also, to be said: That it is not
at all probable that a number of farmers
would use, for many years, for the purpose
of irrigation, an amount of water that would
destroy or impair the value of their land. Of
course, they would not willingly do so; and
it is hard to believe that, in these days of
intelligent and scientifically directed agri-
culture, these men, who have located and
built up a thriving community, would make
such a grievous mistake as to cause delib-
erately their lands to become water-logged
and depreciated for all the purposes of hus-
bandry. The very fact that they used for so
many years a certain quantity of water is,
indeed, very persuasive evidence that such
quantity was actually needed for such pur-
poses. It is not conclusive evidence of that
fact, but it is a circumstance of impressive
significance."
[34, 35] Appellant also contends that, be-
cause of the alleged poor methods of diver-
sion used by respondents, excessive quanti-
ties of water are used by them. There can
45 P.(2()---6


be no doubt that respondents as a group
do not divert the water in the most scientific
manner. There can be no doubt that in
some cases, because of the paralleling
of the ditches of some of the respond-
ents, there is an uneconomic use of water.
If all of the respondents constituted one
appropriating unit, then perhaps there
would be some merit in appellant's conten-
tion that respondents' methods are wasteful.
But these various appropriators are not one
unit-each one has its own appropriative
right, gained by many years of use. The
courts cannot and, even if they had the pow-
er, should not compel these appropriators,
many of whom have been diverting water
for over fifty years, at their expense, to
build new systems of diversion.
It is true that most of the ditches of the
respondents are earthen ditches and that, in
the porous soils of the delta there is a result-
ing large conveyance loss caused by seepage.
Respondents concede that under the system
now prevailing on the delta there is a con-
veyance loss of between 40 to 45 per cent.
Appellant contends that reasonably such
conveyance loss should not exceed 30 per
cent. For various reasons, appellant's con-
tention cannot be sustained. In the first
place, there were introduced into evidence
various state bulletins dealing with the gen-
eral question of conveyance losses on vari-
ous irrigation projects. An examination of
those bulletins indicates that many irriga-
tion systems in the San Joaquin Valley have
an average conveyance loss far in excess of
40 per cent. One very large system has had
a conveyance loss of 55.2 per cent. over a
period of five years, while another is esti-
mated at 57.9 per cent. In the same bulletin
is a table referring to four United States
reclamation projects, built by government
engineers, and on these four projects the
lowest conveyance loss is 42 per cent. and
the highest 51.4 per cent., the average being
46.8 per cent.
In the second place, respondents, as a mat-
ter of law, have the right to divert by means
of earthen ditches. They cannot be com-
pelled to construct impervious conduits in
order that seepage water may be made avail-
able to appellant. An appropriator is not
compelled either to irrigate in the most
scientific manner known or to divert in the
most scientific manner known. In Joerger
v. Pacific Gas & Electric Co., 207 Cal. 8, 23,
276 P. 1017, 1024, the rule is stated as fol-
lows:
"While an appropriator can claim only
the amount which is necessary to properly


Cal. 1009







45 PACIFIC REPORTER, 2d SERIES


supply his needs, and can permit no water
to go to waste, he is not bound, as here
claimed, to adopt the best method for util-
izing the water or take extraordinary pre-
cautions to prevent waste. He is entitled
to make a reasonable use of the water ac-
cording to the custom of the locality, and,
as long as he does so, other persons can-
not complain of his acts. The amount of
water required to irrigate his lands should,
therefore, be determined by reference to
the system used, although it may result in
some waste which might be avoided by
the adoption of another or more elaborate
and extensive distribution system. Farn-
ham on Waters, 675; Wiel on Water
Rights (3d Ed.) 481; Barrows v. Fox,
98 Cal. 63, 32 P. 811."
[36-38] In view of the retrial, and in
concluding this portion of this opinion,
the following observations are pertinent.
It must be remembered that respondents'
appropriative rights long antedate any
right of the appellant to any water at all
for use on nonriparian lands. The prior
rights of respondents, regardless of the
great needs of appellant, must be protect-
ed. Respondents have developed a system
of diversion and use on the Delta that has
made that region one of the most prosper-
ous and productive portions of California.
We cannot hold, for reasons already stated,
that respondents' methods of diversion and
methods of use are wasteful. If appellant
sincerely desires to save some of the con-
veyance loss, on the retrial, it can offer to
defray the expenses of straightening some
of the major ditches, or of building, in
some cases, impervious ditches. More-
over, the trial court should not lose sight
of the fact that this is an equity case. The
equity courts possess broad powers and
should exercise them so as to do substan-
tial justice. Heretofore, the equity courts,
in water cases, apparently have not seen
fit to work out physical solutions of the
problems presented, unless such solutions
have been suggested by the parties. But
it should be kept in mind that the equity
court is not bound or limited by the sug-
gestions or offers made by the parties to
this, or any similar, action. For purposes
of illustration, if the trial court, on the re-
trial, comes to the conclusion, based upon
proper evidence, that a substantial saving
can be effected at a reasonable cost, by
repairing or changing some of the ditches,
as above mentioned, it undoubtedly has the
power regardless of whether the parties


have suggested the particular physical solu-
tion or not, to make its injunctive order
subject to conditions which it may sug-
gest and to apportion the cost thereof as
justice may require, keeping in mind the
fact that respondents have prior rights and
cannot be required lawfully to incur any
material expense in order to accommodate
appellant. Other physical solutions, such
as the possible impounding of some of the
water during periods, if any, when it is
not needed by respondents, whereby some
water can be made available to appellant
without injury to respondents may suggest
themselves. Appellant has suggested one
such plan, the construction of an impervi-
ous bypass to carry some of the waters of.
the Lower Kaweah river over the cone
of depression created by the pumping of
appellant. An examination of the specific
plan suggested by appellant clearly shows
that it is not adequate to protect respond-
ents. Not only did it not cover the en-
tire cone of depression clearly shown to
exist by respondents' witnesses, particular-
ly upstream from the rancho, but it failed
to provide properly for injury necessarily
resulting to certain of respondents' diver-
sion ditches in the basin, and entirely dis-
regarded the induced seepage to the St.
Johns river. It may be, however, that the
idea of a bypass has some merit. It may
be that a proper plan can be worked out
whereby a bypass can be constructed so
that the respondents' rights will not be in-
jured by appellant's pumping operations.
[39] In attempting to work out any
physical solution that may suggest itself,
or for any other purpose the trial court
may deem sufficient, it seems well to refer
to what was recently said by this court in
the Peabody Case, supra, on this general
subject (40 P.(2d) 486, page 494):
"If the attitude of the parties in a par-
ticular case be such as to embarrass the
court in the proper determination of the
case in view of a larger public interest in-
volved and for the protection of all con-
cerned, or for other sufficient reasons, the
court might well invoke the aid of the di-
vision of water rights of the board of pub-
lic works under section 24 of the Water
Commission Act (St. 1913, p. 1027, as
amended by St. 1931, p. 2421; Deering's
General Laws 1931, vol. 3, Act 9091, p.
5017), in the determination of the rights
to water and the use of water in accord-
ance with the constitutional policy. See
Wood v. Pendola [1 Cal.(2d) 435] 135


1010 Cal.







TULARE IRR. DIST. v, LINDSAY-STRATUMORE mRR. DIST.
45 P. (.d)


P.(2d) 526. The purpose of that state
authority to safeguard rights in the use of
water for domestic and agricultural pur-
poses against a subsequent appropriator
was evidenced in the case of East Bay Mu-
nicipal Utility District v. Department of
Public Works [1 Cal.(2d) 476] 35 P.(2d)
1027."
By section 24, above referred to, the
trial court, in water cases, in its discretion,
with or without a request from the parties,
may order a reference to the state water
commission, or it may refer the cause to
the commission for investigation and re-
port upon any one, or more, or all of the
physical facts involved. The procedure
outlined in the section seems well suited
to cases as complicated as most water cas-
es. The facilities of the commission can,
in this manner, be made available to the
trial court and that court can thus secure
independent and impartial expert advice
not colored by personal interest. Inci-
dentally, the procedure outlined in this sec-
tion will secure representation of the state
in such actions, thus insuring the protec-
tion of the rights of the public.
[40] Also, in view of the retrial, some
mention should be made of the priorities
between the various respondent appropria-
tors. The trial court stated in its findings
that it made no findings as to the priorities
or rights existing between the respective
plaintiffs and interveners, as against each
other, and that the findings were not in-
tended to affect the rights of the plaintiffs
and interveners, as against each other. A
similar provision was incorporated in the
judgment. As an abstract proposition,
such findings embody a sound principle of
law. Of course, ordinarily, a verdict fix-
ing the rights of several plaintiffs, as
against a defendant, would not be res ad-
judicata in a subsequent action between
those plaintiffs. That is apparently what
the trial court had in mind. But in the
present case, there is also another prin-
ciple involved. As an integral part of
their case, each of the respondents herein
had the burden of proving when the
amount diverted by it was actually divert-
ed. The appropriator is limited not only
by the amounts diverted in the past, but
also to the times it diverted the water in
the past. If, in fact, as appellant claims,
there existed a fixed schedule of priorities
among the various respondent appropria-
tors and, if such schedule was actually ob-
served among such parties and if, as ap-


pellant claims, under this schedule of pri-
orities, the diversions of some of the ap-
propriators were so limited and postponed
that they could not and did not take the
water except during a limited period, ob-
viously, such appropriator, with such a lim-
ited right, could not establish a right to
take the water for the entire year. Stat-
ed another way, if any appropriator's right
in the past has been so limited by reason
of prior appropriations by others that it
actually did not get and use water in cer-
tain periods of the year, obviously it could
acquire no right as against appellant to a
continuous flow for the entire year. Dur-
ing the course of this trial, it developed
that there were two river associations, one
for the St. Johns and one for the Lower
Kaweah. Each of the associations con-
sisted of the appropriators on that river
and acted in the interests of all its mem-
bers. During the course of the trial, there
was introduced into evidence by respond-
ents themselves a so-called schedule of
priorities supposedly existing among the
members of each association. If this
schedule of priorities shows the actual
practice on each river, then, according to
appellant, it is mathematically demonstra-
ble that some of respondents' ditches did
not and could not receive any water during
certain portions of the year. On the re-
trial, it would seem to be an indispensable
part of respondents' proof to show how
and when the water was actually diverted
by them in the past and thus incidentally
to show the priorities actually existing be-
tween the parties.
For the guidance of the trial court, some
mention also should be made of several
other points. The trial court found that
there was no surplus of water in the Del-
ta from which the appellant could take
25,000-acre feet annually, or any other
fixed quantity, without injury to respond-
ents. That finding, however, is necessarily
based on the findings which fixed the
amounts awarded to each appropriator.
These awards, as we have already held,
are unsupported, and so the finding that
there is no surplus falls with them. That
will be one of the main issues to be de-
termined on the retrial.
The last main point necessary to be dis-
cussed is whether or not the evidence
shows that appellant's pumping has caused
or will cause seepage losses from the St.
Johns river at all, or has caused, or will
cause, seepage losses from the Lower


Cal. 1011


__ _U__







45 PACIFIC REPORTER, 2d SERIES


Kaweah river in excess of 10 second feet.
First as to the seepage losses from the St.
Johns river. The trial court found that
the pumping operations of defendant have
created a cone of depression extending be-
yond the limits of the Rancho de Kaweah;
that the cone of depression is approximate-
ly 21/4 miles in width from northwest to
southeast and 4 miles in extent from north-
east to southwest; that the cone of de-
pression extends under the St. Johns river
for a distance of approximately five miles;
that the well of defendant in closest prox-
imity to the St. Johns river is situated
about one-half mile south therefrom. The
court also found that the pumping opera-
tions of defendant and the cone of depres-
sion created thereby, extended under cer-
tain designated diversion ditches or canals
of respondents located in the basin. Sev-
eral of the wells are located within two to
three hundred feet of these ditches. The
appellant makes a determined assault on
these findings. It reviews at length the
theories of its experts, all of whom testi-
fied that appellant's pumping. did not af-
fect the surface flow of the St. Johns.
After an analysis of the evidence pro-
duced by respondents on this point, we are
of the opinion that the expert and lay tes-
timony produced by respondents over-
whelmingly supports the above findings.
Respondents not only proved these points
by opinion evidence, but also by factual
evidence, which proves the correctness of
the trial court's findings to a mathemati-
cal certainty. The peculiar geological for-
mation of the basin, with its two outlets
through the Venice Hills, one for each riv-
er, and with the impervious red lands to
the north, makes the basin a large under-
ground reservoir. The" Venice Hills pre-
sent an effectual barrier to the under-
ground waters of the basin percolating
away therefrom in appreciable quantities.
Pumping operations of the appellant ma-
terially decreasing the underground supply
caused induced seepage from the St. Johns
river and the above-mentioned diversion
ditches. Appellant's contention that the
bed of the St. Johns river is composed al-
most entirely of impervious materials
through which the waters in the stream
cannot percolate and, hence, that there can
be no induced seepage is not borne out by
the evidence. The evidence produced by
respondents proved quite conclusively that
while there are some small and isolated
areas of impervious material, the larger
portion of'the bed of this river north of


the rancho is composed of sands and al-
luvium, through which water will percolate
rapidly. The evidence clearly shows that
there is a direct contact between the wa-
ters in the stream and the underground
waters, and that the removal of the latter
by the pumping operations of appellant re-
sults in the removal of water from the
stream.
As to the Lower Kaweah river, the ap-
pellant admits that its pumping operations
directly diminish the flow of this river,
but contends that they do not do so to the
extent fixed by the trial court. The trial
court found that the cone of depression ex-
tends under the bed of the Lower Kaweah
river for about four miles; that the pump-
ing operations of appellant have dimin-
ished and in the future "will diminish the
late surface flow of the Lower Kaweah
River in amounts at all times in excess of
ten cubic feet of water per second, and
that the amount of said diminution has
varied during said pumping operations,
from day to day and season to season, and
that said operations of defendant on vari-
ous occasions and for many a day have
diminished the late surface flow of the
Lower Kaweah River to an extent in ex-
cess of forty (40) cubic feet of water per
second. *" This finding is amply
supported by the evidence. The plan of-
fered by appellant to prevent this loss, that
is, the construction of an impervious by-
pass over this area, to carry some of the
water, for reasons already discussed, was
not adequate. On the new trial, perhaps
a physical solution better fitted to the needs
of the situation will be suggested.
No useful purpose would be served by
retrying the issues presented by the ques-
tion as to whether the pumping operations
of the appellant have in the past caused
and, if continued, will cause seepage loss-
es from the two rivers and the designated
diversion ditches, as found by the trial
court. The portions of the judgment deal-
ing with this question should, therefore, be
affirmed.
The retrial of this action need not be a
protracted one. The trial court, upon
proper application, can and undoubtedly
will grant a preliminary injunction that
will protect all parties pending and during
the new trial. Large portions of the evi-
dence can and probably will be stipulated
to, and many other portions of the evi-
dence introduced on this trial will not be
necessary. As to the appropriators, the


I~Al IIL---


1012 Cal.







TULARE IRR. DIST. v. LINDSAY-STRATIIMORE IRR. DIST.
45 P.(2d)


issues on the retrial will be greatly simpli-
fied. The respondents must prove the
quantities of water diverted by them in
the past and that such waters were devot-
ed to beneficial uses. Respondents' meth-
ods of use and methods of diversion have,
in this opinion, been held to be reasonable.
If appellant can show, after respondents'
prior rights are filled, that there is a sur-
plus, it will be entitled to that surplus. If
the appellant or the trial court can dis-
cover a reasonable physical solution so as
to save any portions of the waters without
injury to respondents, such physical solu-
tion undoubtedly will be enforced by the
trial court.
For the foregoing reasons, the judgment
appealed from is reversed, affirmed, and
modified, and, as modified, affirmed, as fol-
lows :
1. By reason of the stipulation of the
parties hereinafter named, the court below
is directed to modify the judgment ap-
pealed from as between respondents and
interveners H. E. Wright, S. E. Railsback,
Gilbert H. Russell, Gordon Hall, James K.
Moffitt, Joseph G. Hooper, .Willys Hall,
George A. Smith, Nellie M. Smith, and
Alice C. Hall and appellant in the follow-
ing particulars:
(a) By adding to paragraph X of said
judgment, at the end thereof, the follow-
ing: "Except that said Defendant Lindsay-
Strathmore Irrigation District is entitled
and has the right, as against said Inter-
veners and each of them, their successors
and assigns, to pump, take, divert and car-
ry away from the said Kaweah River or
any of its branches or extensions, or from
the St. Johns River or any of its branch-
es or extensions, or from the Rancho de
Kaweah, or from the underground water
underlying the said Rancho de Kaweah or
what is known as the Kaweah Delta, with-
out any objection or interference on the
part of said Interveners, their successors
or assigns, or any of them, in each and
every calendar year, at such time or times,
and at such rate or rates, as said defend-
ant may desire, such amount of water as
shall, in any. year, equal but not exceed
the amount of water which would be pro-
duced or discharged by an average contin-
uous flow, during such year, of 35 cubic
feet of water per second; and to transport
said quantity of water so pumped, taken,
diverted or carried away by said Defend-
ant to and upon the lands within the
boundaries of said Lindsay-Strathmore Ir-


rigation District, as they are now defined,
for use upon said lands for irrigation and
domestic uses and other beneficial pur-
poses."
(b) By adding to paragraph XIV of said
judgment, at the end thereof, the follow-
ing: "Except that as against said Inter-
veners, H. E. Wright, S. E. Railsback, Gil-
bert H. Russell, Gordon Hall, James K.
Moffitt, Joseph G. Hooper, Willys Hall,
George A. Smith, Nellie M. Smith, Alice
C. Hall and each of them, their succes-
sors and assigns, said Defendant may, not-
withstanding anything in this paragraph or
in this judgment to the contrary contained,
pump, take, divert and carry away from
the said Kaweah River or any of its
branches or extensions, or from the St.
Johns River or any of its branches or ex-
tensions, or from the Rancho de Kaweah,
or from the underground water underlying
the said Rancho de Kaweah, or said
Kaweah Delta, in each and every calendar
year, at such time or times, and at such
rate or rates, as said defendant may de-
sire, such amount of water as shall, in any
year, equal but not exceed the amount of
water which would be produced or dis-
charged by an average continuous flow,
during such year, of 35 cubic feet of wa-
ter per second, and to transport such
amount of water to and upon the land
within the boundaries of said Lindsay-
Strathmore Irrigation District as they are
now defined, for irrigation and domestic
uses and other beneficial purposes."
(c) By eliminating from said judgment
paragraph XX thereof.
The judgment, when modified in the sev-
eral particulars above mentioned, stands
affirmed, as between these parties.
2. In accordance with the stipulation and
agreement of the parties hereinafter
named, the motion of appellant to reverse
the judgment in favor of the Mineral King
Fruit Company is hereby granted and the
cause remanded to the court below with
instructions to dismiss the action of the
plaintiff, Mineral King Fruit Company,
with prejudice.
3. By reason of the stipulation of the
parties hereinafter named, the court below
is hereby directed to modify the judgment
appealed from as between respondent and
intervener Marietta R. Gray and appellant
in the following particulars:
(a) By adding to paragraph XI of said
judgment, at the end thereof, the follow-
ing: "Except that the said defendant Lind-


Cal. 1013







45 PACIFIC REPORTER, 2d SERIES


say-Strathmore Irrigation District is en-
titled to and has the right as against said
Intervener Marietta R. Gray, her succes-
sors and assigns, to pump, take, divert and
carry away from the underground water
underlying the said Rancho de Kaweah,
without any objection or interference on
the part of said Intervener, her successors
or assigns, or any of them, irrespective
of whether such pumping, diversion, taking
or carrying away of said water shall
diminish, lessen, or interfere with the flow
of water in said Kaweah River, or any of
its branches or extensions, or any natural
water course, ditch or canal, or any under-
ground waters in each and every calendar
year at such time or times, and at such
rate or rates as said defendant may desire,
such amount of water as shall in any year
equal but not exceed the amount of water
which would be produced or discharged
by an average continuous flow during such
year of 35 cubic feet per second, and to
transport said quantity of water so
pumped, taken, diverted or carried away
by said defendant to and upon the lands
within the boundaries of said Lindsay-
Strathmore Irrigation District as they are
now defined, for use upon said lands for
irrigation and domestic uses and other ben-
eficial purposes."
(b) By adding to paragraph XIV of said
judgment, at the end thereof, the follow-
ing: "Except that as against said Inter-
vener, Marietta R. Gray, her successors
and assigns, said Defendant may, notwith-
standing anything in this paragraph or in
this judgment to the contrary contained,
pump, take, divert and carry away from
the underground water underlying said
Rancho de Kaweah in each and every cal-
endar year, at such time or times, and at
such rate or.rates, as said defendant may
desire, such amount of water as shall, in
any year, equal but not exceed the amount
of water which would be produced or dis-
charged by an average continuous flow,
during each year, of 35 cubic feet of water
per second, and to transport such amount
of water to and upon the land within the
boundaries of said Lindsay-Strathmore Ir-
rigation District as they are now defined,
for irrigation and domestic uses and other
beneficial purposes."
(c) By eliminating from said judgment
paragraph XXI thereof.
The judgment, when modified in the sev-
eral particulars above mentioned, stands
affirmed as between these parties.


4. As to the various riparian respond-
ents, including the respondents impleaded,
whose rights have not been settled by com-
promise or stipulation, those portions of
the judgment fixing the riparian nature of
their respective parcels of land are af-
firmed.
5. As to the riparian and overlying re-
spondents, including the impleaded parties,
whose rights have not been settled by com-
promise or stipulation, the judgment ap-
pealed from is reversed, except as limited
by paragraphs 4 and 6 hereof, with direc-
tions to the trial court to proceed with
the retrial as to these parties, in accord-
ance with the views expressed in the body
of this opinion.
6. As to all the parties, those portions of
the judgment declaring that defendant's
pumping has diminished and will, if con-
tinued, diminish the surface flow of both
rivers and some of the diversion ditches,
and fixing the extent of the cone of depres-
sion created by such pumping, are affirmed.
7. As to the appropriators, except as
limited by other portions of this order,
and particularly by paragraph 6 hereof,
the judgment appealed from is reversed,
with directions to the trial court to pro-
ceed with the retrial as to these parties, in
accordance with the views expressed in the
body of this opinion.
8. All parties to bear their own cost on
this appeal.

We concur: SHENK, J.; CURTIS, J.;
NOURSE, Justice pro tem; SEAWELL,
J.; PRESTON, J.

On Petition for Rehearing.
PER CURIAM.
[41] Respondents' petition for a rehear-
ing is denied. Appellant's petition for cor-
rection and modification of the opinion is
likewise denied. While it is true, as urged
by appellant, that there is no specific para-
graph of the judgment of the trial court
directly referring to the matters affirmed
by paragraph 6 of the order of this court,
it is also true that many portions of the
judgment are necessarily based thereon.
Several paragraphs of the judgment of the
trial court provide that the rights of the
respondents must be satisfied before the
appellant is entitled to pump any water
for nonriparian uses from the waters un-
derlying the Rancho de Kaweah. Those
portions of the judgment can only be un-


3


1014 Cal.







TEXAS- CO. v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N Cal. 1015
45 P.(2d)


derstood by reference to the findings
wherein the physical characteristics of the
basin, the ee'cct of appellant's pumping on
the surface tlow of the two rivers, and the
extent of the cone of depression are set
forth in de:ail. As set forth in the opin-
ion heretofore filed in this case, the evi-
dence produced by respondents overwhelm-
ingly supports the findings as to the effect
of any puntping on the Rancho de Kaweah,
on the surl.ice flow of the two rivers, and
on the designated diversion ditches, upon
which the portions of the judgment above
referred to are based. Under the circum-
stances it would be an unjustified burden
to require respondents, on the new trial,
to re-establish the matters referred to.
Appellant concedes that an appellate court
may, in ordering a new trial, limit such
new trial to particular issues, letting cer-
tain findings stand upon such new trial.
For all practical purposes, that is pre-
cisely the legal effect of paragraph 6 of
the order of this court. It was intended
by that paragraph to exclude from consid-
eration on the new trial all issues men-
tioned in t 'aragraph 6, and to let the find-
ings in relfercnce thereto, and the portions
of the juldment supported thereby, stand
on such retrial.
The other matters raised by appellant
do not require discussion.








TEXAS CO. v. BANK OF AMERICA NAT.
TRUST & SAVINGS ASS'N et al. (OL-
CESE et al., Interveners).
Civ. 9261.

District Court of Appeal, First District,
Division 1, California.
May 23, 1935.
Hearing Granted by Supreme Court
July 22, 1935.
I. Executors and administrators 0=150
If loise executed by special administra-
tor was void, lessee was entitled to return of
consideration paid for lease.

2. Courts '198
Prob;te proceedings being purely statu-
tory and therefore special in their nature, the
superior court, although court of general ju-
risdiction, is circumscribed in such class of


proceedings by provisions of statute confer-
ring such jurisdiction and may not proceed
in manner essentially different from that pro-
vided.

3. Executors and administrators t910
Residence and death of intestate within
county gave superior court of that county, by
virtue of petition for letters of administra-
tion, jurisdiction of subject-matter of intes-
tate's estate.

4. Executors and administrators =-9
Although jurisdiction over subject-mat-
ter of estate authorized appointment by su-
perior court of an administrator, where stat-
utory provisions provided exclusive method
for exercise of such authority, an appoint-
ment contrary to applicable statute would
be in excess of court's "jurisdiction."
"Jurisdiction" sometimes means au-
thority over the subject-matter, but it
also frequently means authority to do
particular thing done.
[Ed. Note.-For other definitions of
"Jurisdiction (Of Courts)," see Words
& Phrases.]

5. Executors and administrators 8=150
Presentation of petition for an order to
lease realty of decedent's estate by an au-
thorized person is jurisdictional fact and if
court erroneously grants petition of unau-
thorized person, its order is void and cannot
support lease (Code Civ. Proc. 1579, subd.
1).
6. Executors and administrators <-20(10)
In seeking and obtaining permission of
superior court to lease property.,of estate,
bank was not acting under its appointment
as general administrator, since prosecution
of appeal from order of appointment, pending
which appeal the proceedings were had for
leasing the property, suspended authority of
bank as general administrator (Code Civ.
Proc. 1579).

7. Executors and administrators <=22(2)
Proceedings in certiorari resulting in an-
nulment of order appointing bank special ad-
ministrator was a direct attack on order.

8. Executors and administrators 0:29(2)
Action to recover consideration paid for
lease executed by bank as special administra-
tor on ground that lease was void because of
void appointment of bank as special adminis-
trator constituted a collateral attack on or-
der of appointment (Code Civ. Proc. 1579).

9. Judgment =475
Same presumption as to jurisdiction at-'
taches to decrees in probate proceedings on
collateral attack as to other judgments of su-


O-.IFor other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes




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