Title: City of Pasadena v. City of Alhambra et al. L. A. 19610
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Title: City of Pasadena v. City of Alhambra et al. L. A. 19610
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Language: English
Publisher: Pacific Reporter 2d Series
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - City of Pasadena v. City of Alhambra et al. L. A. 19610 (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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Full Text



CITY OF PASADENA v.
Oite as 20
With respect to condition number three,
that appellant dedicate a strip of land 80
rather than 60 feet in width for the widen-
ing of 77th Street which traverses the sub-
division, appellant concedes in his brief that
it is a street "necessary for the general use
of the lot owners in the subdivision and
local neighborhood traffic." Business &
Professions Code, sec. 11511. From the
record it appears that this condition was
imposed to bring the proposed extension of
77th Street into alignment with the existing
portion of 77th Street on the westerly side
of Arizona Street, and thus within the pro-
vision of the ordinance as previously set
forth, that all streets shall be in alignment
with existing, connecting streets, and that
.it was properly imposed under both the
Subdivision Map Act, Business & Profes-
sions Code, sec. 11551,. and the applicable
ordinance. -. Appellant's only contention
with respect-to the imposition of this con-
dition is that the width required is "un-
reasonable." It is without merit. The state
and its political subdivisions, acting in the
interest of public health, welfare and safe-
ty, may make reasonable requirements. It
is apparent from the record that the re-
S quirement of a width of 80 feet rather than
. 60 feet for 77th Street which traverses ap-
pellant's proposed subdivision is not an un-
Sreasonable or arbitrary requirement in the
interests of the public safety and welfare.
This condition is of the type contemplated
by the Subdivision Map Act.
Appellant's contentions that the provi-
sions of the Los Angeles City Charter and
the State Planning Act of 1929, as amended,
2 Deering's Gen.Laws, Act 5211b, requiring
a master plan had not been complied with
in that there was no general, complete,
over-all plan are without merit. The Char-
ter, section 961/ provides that- a "master
plan or any part thereof" may be adopted
by the State Planning Act (assuming with-
out deciding that it is applicable to the
City) that: "The master plan, with the ac-
companying maps, diagrams, charts, de-
scriptive matter and reports shall include
such of the.following subjects matter [sic]
or portions thereof as-are appropriate to the
City, county or region -* *." Thus it
would appear that both legislative bodies
did not intend that a plan, in its entirety,
207 P.2d-2


CITY OF ALHAMBRA Cal. 17
7 P.Sd 17
was to be necessary at any one particular
time. A general plan for a City would in-
clude a plan for not only its subdivisions,
street systems with their building lines or
set-backs, but many other things necessary
for a well-developed community. It can-
not.be seriously contended nor was it in-
tended that a work of such magnitude could
be accomplished over night.
I would, therefore reverse the judg-
ment and direct the trial court to issue a
writ of mandate directing the approval of
the proposed map subject to compliance
with Condition No. 3 hereinabove set forth.

SCHAUER, J., concurs.



LKEY NUMBER SYSTEM





CITY OF PASADENA v. CITY OF
ALHAMBRA et at.
SL. A. 19610.

Supreme 'Court of California, in Bank.:
S ": June 3, 1949.

Rehearing Denied June:27, 1949.,
1. Dismissal and nonsult e=60(2)
Under the statute requiring dismissal
unless action is brought to trial within
five years after filing, in computing that
period, time during which for all prac-
tical purposes going to trial would be
impossible whether because of total lack
of jurisdiction in strict sense or because
proceeding to trial would be both imprac-
.tical and futile is to be excluded. Code
SCiv.Proc. 583.
2. Dismissal and nonsult e=60(2)
Where complaint was filed in Sep-
tember 1937, reference was made in Feb-
ruary 1939, and report was filed in July
1943, and thereafter parties proceeded
with reasonable dispatch to bring cause
to trial, and issues depended to great ex-
tent on facts to be ascertained by referee,
time consumed by reference was to be
excluded, and dismissal was not manda-
tory because trial was not commenced


~


h LL- I I I- Il I ww1 P







207 PACIFIC REPORTER, 2d SERIES


within five years after filing. Code Civ.
Proc. 583.
3. Constitutional law =880(2)
Waters and water courses <9-128
Provision of the Water Commission
Act authorizing court in action involving
conflicting water rights to make reference
to State Water Commission does not pro-
vide for exercise of judicial power by
referee, and does not violate the state
constitution providing for separation of
powers of executive and judicial branches
of government. Gen.Laws, Act 9091, 24;
Const. art. 3, 1.
4. Statutes 4=S85(4)
Provision of the Water Commission
Act authorizing court in action involving
conflicting water rights to make reference
to Water Commission as referee is not
unconstitutional and void as a special law
providing for variation from general prac-
tice and procedure in the Superior Court.
Gen.Laws, Act 9091, 24; Const. art 4,
25;.-- .
5. Waters and water courses e1i52(10)
Under the Water Commission Act
authorizing court in action involving con-
flicting water rights to make reference to
Water Commission, court could properly
refer water rights case to division of water
resources or its predecessor, the division of
water rights after abolition of the Com-
mission. Gen.Laws, Act 9091, 24; Water
Code, 22, 2000, 2001. -
6. Appeal and error =1056(1)
Where some individuals who worked
on report of referee in action involving
conflicting water rights were not available
for cross-examination, but man who pre-
pared report and supervised investigation
and others who worked on it testified, and
there was no showing that party sought
testimony of persons not present, and party
was permitted to introduce evidence con-
trary to facts appearing in report, party
could not complain of denial of opportunity
to be heard in opposition. Gen.Laws,
Act 9091, 24.
7. Pleading <=427
Where answers of party in action in-
volving conflicting water rights did not


present claims against other defendants
and were not served on them, but court
ruled that issues should embrace adjudi-
cation of rights of defendants inter se and
rights of each party as against every
other party, and action was tried on that
theory and complaining defendant had
ample time to prepare and made no claim
it was misled or denied due process of
law, scope of proceeding was not im-
properly enlarged. Gen.Laws, Act 9091,
24.

8. Waters and water courses e=152(5)
Where referee in action involving
conflicting water rights recommended that
named parties who used fairly substantial
amounts be joined, and no request was
made by complaining defendant for in-
clusion of any party who had not been
joined, and defendant's interest was not
injuriously affected by failure to require
joinder of all possible claimants, court
could properly order large users brought
in over objection, and allocate water with-
out joinder of private users of compara-
tively small amounts. Gen.Laws, Act 9091,
24.

9. Eminent domain :=>266, 279(2)
When public use has attached to pro-
duction of water, inverse condemnation
proceedings may be invoked, and com-
pensation in lieu of prohibitory injunction
is preferred because of inconvenience to
public if service is interrupted by issuance
of injunction.

10. Eminent domain @8266
Waters and water courses =152(ll)
Where municipality as chief pro-
ducer of water from underground basin
brought action to enjoin overdrafts and
prevent depletion, and all parties, public
and private, consented to be enjoined
except private user whose water was
devoted to public use, and monetary loss of
other private users was difficult to fix and
records failed to indicate public interest
would be served by depriving private
users of pumping rights and compensating
them therefore court could properly issue
injunction rather than invoke inverse con-
demnation proceedings.


L' Il II ,, 1. cl


.18 CaL







CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


II. Waters and water courses -=152(8)
S Evidence in action to determine con-
flicting water rights in Raymond Basin
area supported finding that ground water in
western unit was contained in single stor-
age basin with result that taking by
each user affected others, as against claim
of user that taking of water could not
possibly injure upper claimants since water
flowed underground like a stream.
12. Waters and water courses S=152(10)
In action involving conflicting water
rights in the Raymond Basin area, referee's
estimate of safe yield was not objection-
able as an understatement.

13. Waters and water courses 0=107(3), 152
( 1)
In action to determine conflicting
rights to basin of underground water, to
enjoin overdraft and prevent depletion,
court :had authority to limit taking of
underground water for purpose of pro-
tecting supply and preventing undue lower-
ing of water table.

14. Waters and water courses 0-100, 101
Generally an "overlying right" an-
alogous to that of riparian owner in
Pf surface stream, is right of owner of land
to take water.from ground underneath for
use on his land within basin or watershed,
and right is based on ownership of land
and is appurtenant thereto.
See Words and Phrases, Permanent
Edition, for other judicial constructions
and definitions of "Overlying Right".
15. Waters and water courses =:127
Term "appropriation" means any
taking of water for other than riparian
or overlying uses.
See Words. and Phrases, Permanent
Edition, for other judicial constructions
and definitions of ".Appropriation".
16. Waters and water courses e=2127
Where a taking of water is wrongful,
it may ripen into a prescriptive right.

17. Waters and water courses 0=100, 101,
116, 127, 132
An overlying owner of any other per-
son having a legal right to surface or
underground water may take only such
amount as he reasonably needs for bene-


Cal. 19


ficial purposes; and public interest requires
that there be greatest number of bene-
ficial uses which supply can yield, and
water may be appropriated for beneficial
uses subject to rights of those who have
a lawful priority, any water not needed
for such uses of those having prior rights
being "excess or surplus water." Const.
art. 14, 3.
18. Waters and water courses =130, 132
,Surplus water may rightfully be ap-
propriated on privately owned land for
non-overlying uses such as devotion to
a public use or exportation beyond basin
or watershed.
19. Waters and water courses =107(2), 130
When there is a surplus, whether of
surface or underground water, holder of
prior rights may not enjoin its appro-
priation.

20. Waters and water courses =I100, 101, 130,
142
Proper overlying use of underground
water is paramount, and right of an ap-
propriator, being limited to amount of
surplus, must yield to that of overlying
owner in event of shortage unless appro-
priator has gained prescriptive right
through taking of non-surplus waters.

21. Waters and water courses =100, 101
As between overlying owners, rights
of underground water are correlative and
are referred to as belonging to all in com-
mon, and each may use only his reasonable
share when water is insufficient to meet
needs of all
22. Waters and water courses t=140
As between appropriators of under-
ground waters, one first in time is first
in right, and prior appropriator is entitled
to all water he needs up to amount he
has taken in the past before subsequent
appropriator may take any. Civ.Code,
1414.
23. Waters and water courses 0=146
Prescriptive rights are not acquired
by taking of surplus or excess underground
water since no injunction may issue against
taking; and appropriator may take surplus
without giving compensation, although
overlying owners and appropriators are


A


I ~1 111~





entitled to protection against substantial
infringement of rights in water which they
reasonably and beneficially need; and
appropriative taking of water which is
not surplus is wrongful and may ripen into
a prescriptive right where use is actual,
open and notorious, hostile and adverse to
original owner, continuous and uninter-
rupted for statutory period of five years,
and under claim of right.

24. Waters and water courses 0=127, 129,
138
To perfect claim based on prescrip-
ton, there must be conduct constituting
actual invasion of former water owner's
rights so as to entitle him to bring action,
and appropriative and prescriptive rights
to ground water.as well as rights of over-
lying owner, are subject to loss by adverse
user.

25. Waters and water courses 0=100, 101,
146
Where -utility exported three-fourths
of water produced by it to customers'
located outside underground basin area and
claimed overlying rights as. to remaining
one-fourth, rights as to exported water
could not be overlying in character but
were either appropriative or prescriptive. :

26. Waters and water courses R=107(2)
Where quantity-of underground water
withdrawn exceeds average annual amount
contributed by rainfall, it is proper to limit
total use by all consumers to an amount
equal as near as may be to average supply
and to enjoin takings in such quantities or
in such manner as would destroy or en-
danger underground source..

27. Waters and water courses =I107(2), 152
(3)
Where there was a taking of water
from underground basin in excess of safe
yield, operating progressively to endanger
source and eventually render supply in-
sufficient to meet needs of rightful owners,
owners were injured by additional appro-
priations made after all surplus waters
were taken and were entitled to injunctive
relief to terminate takings in excess of
surplus.


28. Waters"and water courses :=107(3), 152
(8)
Evidence that water levels in wells
which tapped underground supply de-
creased annually was sufficient to charge
well owner with notice of deficiency and.
that appropriations causing overdraft were
invasions of rights of overlying owners and
prior appropriators.
29. Waters and water courses (2=146
Where water level in wells of over-
lying users and appropriators of under-
ground water became lower annually over
period of more than five years, and all
water was taken openly and under claim
of right, elements of. prescription were
present as to overdrafts, and five year
statute of limitations ran against original
lawful holders of water rights to whatever
extent their rights were invaded.

30. Waters and water courses =107(2), 152
(3)
Where subsequent appropriators of
underground water reduced available sup-
ply and their acts if continued would have
rendered it impossible for holder of prior
rights to pump in the future, there was an
enjoinable invasion, and either overlying
owners or prior appropriators, could pre-
vent taking of surplus waters and enjoin
additional users beyond point of safe
yield.

31. Limitation of actions C=1041/2
Running of five year statute of limi-
tations can be effectively interrupted by
self help on part of lawful owner of
property right involved.

32. Waters and water courses =8146
Where overlying owners, prior ap-
propriators and later appropriators drew
on waters in underground basin threatening
destruction of source, but original owners
did not fail to pump for five year period
and had no notice of danger because of
lowered water level in wells, but more
than five years passed before any acted
to protect supply or prevent invasion of
rights, prescriptive rights were established
against overlying owners and prior ap-
propriators in part, and court could prop-
erly limit their production of water to


_ -- --rm~ls~.~-54"- 9


207 PACIFIC REPORTER, 2d SERIES


20 Cal.







CITY OF PASADENA v.
Cite as 20
a percentage o (~*ad taken throughout statutory period.
33. Waters and water courses -=151
The statute providing that unused
water shall revert to the public when
party entitled to use fails beneficially to
use all of it for period of three years
refers only to water appropriated under
a license or permit and does not apply to
water in underground basin which is not
embraced by licensing system and which
does not flow in known definite channels.
Gen.Laws, Act 9091, 1, ld, 11, 15, 16,
20a, 42.
34. Waters and water courses <8=101
Where user of underground water re-
'duced amount drawn by taking water from
another source and thereafter returned to
underground basin-.for total supply, but
second user of water was not induced to
take any .action by reason of first user's
decreased use,.. first user was -not barred
thereafter by estoppelfrom taking from the
Sbasin more water than maximum amount
pumped.:during period in which it used
water from supplementary source when
allocation .became .necessary to conserve
derground basin.... .

oo. Waters and water courses 4 I 01, 151
Where less than four years before
commencement of action to determine con-
flicting rights to water in .underground
basin was begun,, city decreased its use of
underground water and drew on supple-
mentary supply, and after beginning of
action ceased .taking from supplementary
source city was not precluded by laches,.
in absence of showing of prejudice, from
claiming its proportionate share based on
more water than -maximum amount pumped
during period in which city drew on sup-
plementary source.

36. Waters and water courses i=107(3); 152
( t!)' "
Where limited supply of water in
underground basin required allocation to
various users, fact that city as user had
right to purchase water from metropolitan
water district did not require court to
compel such purchase so as to afford larger
supply to other users of underground basin.


CITY OF ALHAMBRA Cal. 21
7 P.2d 17
37. Waters and water courses C=-42, 100,
101, 144, 190
Failure of city to capture and return
to underground basin storm waters, street
flush water, firefighting water and flow
sewage water did not constitute "waste"
in violation of the Constitution prohibiting
waste of water resources. Const. art. 14,
3.
See Words and Phrases, Permanent
Edition, for other judicial constructions
and definitions of "Waste".

38. Waters and water courses 2=152(11)
Where water exchange agreement en-
forced by judgment allocating water to
various users from underground basin
provided that city should restrict pumping
from certain portion of basin and take
remainder elsewhere, basin user who was
not a party could not complain of agree-
ment in absence of pumping by city in
such quantities in immediate vicinity of
user's wells as to render it difficult or
impossible to obtain amount of ivater to
ivhich complaining user was entitled.

39. Waters and water courses Q= 152(11)
Where court reserved jurisdiction, in
action to enjoin.overdrafts of water from
underground basin, to modify judgment
and require water master to keep monthly
recordings of water -depth :in all wells,
court could properly limit various users to
fixed number of acre feet of water a year
in absence of showing'that method would
result in undue raising of water table.

40. Waters and water courses (S=152(10)
Where water user presented no ob-
jections before referee in action involving
conflicting water rights, court thereafter
could properly refuse to admit evidence
offered to rebute report of referee with
respect to user's water production. Gen.
Laws, Act. 9091, 24.

41. Waters and water courses <=-152(11)
Where action was brought to enjoin
overdraft of water from underground
basin, and issue of .rights of one user as
against parties diverting from streams
leading to underground basin was not
clearly raised in pleadings, and there was
insufficient evidence to enable court to


I I II r -'' -








207 PACIFIC REPORTER, 2d SERIES


make a determination as to rights or effect
of such diversions upon safe yield of
basin, court could properly leave open for
future determination rights of user as
against diversioners.
42. Waters and water courses 0=152(Il)
SRetention of jurisdiction by court in
action involving conflicting water rights,
to meet future problems and changing
conditions is an appropriate method of
carrying out policy of state to utilize all
water available.
43. Waters and water courses i=152(11)
Where court in action involving con-
flicting water rights found it necessary to
conserve underground basin and limit
takings to safe yield, and made pro-tanto
reduction in amount each could pump,
court could properly provide that if safe
yield increased, permissible takings could
be increased proportionately up to amount
of present unadjusted right of each party,
although court could not impose five year
limitation upon its power to review de-
termination of safe yield.

CARTER, J., dissenting.



Appeal from Superior Court, Los An-
geles County; Frank C. Collier, Judge.
Action by the City of Pasadena, a mu-
riicipal corporation, against the City of
Alhambra, a municipal corporation, the
California-Michigan Land & Water Com-
pany, a corporation, and others, to de-
termine underground water rights within
the Raymond Basin area, and for other
relief. The Division of Water Resources,
Department of Public Works, State of
California, was designated as referee.
From an adverse judgment, the California-
Michigan Land & Water Company ap-
peals.
Judgment modified and as modified af-
firmed.
For prior opinion, see 180 P.2d 699.
Goodspeed, McGuire, Harris & Pfaff,
Paul Vallee, Richard C. Goodspeed and
SIn accordance with the terminology
employed by the trial court and the par-
ties, the expression "ground water" will


J. Donald McGuire, Los Angeles, for ap-
pellants.
A. E. Chandler, Special Counsel, San
Francisco, Harold P. Huls and H. Burton
Noble, City Attorneys Pasadena, C. C.
Carleton, Spencer Burroughs, He.iry Hol-
singer, Sacramento, James C. Bone and
T. Guy Cornyn, City Attorneys Arcadia,
Gerald E. Kerrin, Robert E. Moore, Jr.,
Los Angeles, Hahn & Hahn, Edwin F.
Hahn, Pasadena, Potter & Potter, Bernard
Potter, Sr., Los Angeles, Merriam, Rine-
hart & Merriam, Ralph T. Merriam, Pasa-
dena, Laurence B. Martin, Los Angeles,
Frederick G. Stoehr, Pasadena, Emmett
A. Tompkins, City Attorney Alhambra,
Kenneth K. Wright, Special Counsel, Los.
Angeles, Paul F. Garber, City Attorney
Monrovia, Walter F. Dunn, Monrovia, and
Thomas Reynolds, City Attorney Los An-
geles Sierra Madre, Anderson & Anderson,
Trent G. Anderson, John C. Packard, Los
Angeles, Bacigalupi, Elkus & Sallinger,
Claude Rosenberg, San Francisco, Der-
thick, Cusack & Ganahl, W. J. Cussack,
Los Angeles, Wilton W. Webster, Pasa-
dena, Dunn & Sturgeon, Walter F. Dunn,
Monrovia, Chandler & Wright, Howard
Wright, Bailie, Turner & Lake, Norman
A. Bailie, Los Angeles, Cruickshank,
Brooke & Dunlap, Boyle & Holmes, John
W. Holmes, Pasadena, Frank P. Doherty,
Gibson, Dunn & Crutcher, Ira C. Powers,
Harold W. Kennedy, County Counsel, S.
V. O. Prichard, Assistant County Counsel,
Los Angeles, for respondents.
Martin J. Weil, Wm. J. De Martini,
J. A. McNair, J. Arthur Tucker, Los.
Angeles, W. F. Kiessig, San Francisco,.
Harrison Guio, L. A. Gibbons, Jerry H.
Powell, Douglas C. Gregg, Lawler, Felix
& Hall, Los Angeles, and Pillsbury, Madi-
son & Sutro, San Francisco, as amicus.
curiau on behalf of respondents.

GIBSON, Chief Justice.
Plaintiff city, the chief producer of water
from a forty square mile alluvial-filled ba-
sin of ground water1 known as the Ray-
rrond Basin Area, instituted this litigation.
be used to refer to water beneath the
surface of the ground.


22 CaL


--------- IL, ~


- ---- -~--BI~I~"~~3gC~.







CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


to determine the ground water rights with-
in the area and to enjoin an alleged annual
(L overdraft in order to prevent eventual de-
pletion of the supply. Pursuant to section
24 of the Water Commission Act, which
was then in force, Stats.1913, p. 1012, as
amended, Deering's Gen.Laws, 1937, Act
9091; now sections 2000-2050 of the Water
Code, the trial court referred the matter
to the division of Water Resources of the
Department of Public Works for a deter-
mination of the facts, and the ensuing re-
port of the division was received in evi-
dence. On the basis of this report all of
the non-disclaiming parties, with the excep-
tion of the defendant California-Michigan
Land & Water Company, a public utility
and the sole appellant herein, entered into
a stipulation for a judgment allocating the
water and restricting total production to
the safe annual yield. The court, after
hearing evidence presented by appellant in
opposition to the report, rendered a judg-
ment substantially enforcing the terms of
the stipulation against all parties, including
appellant.
The principal issues presented on this
appeal are whether the trial court properly
limited the amount of water that appellant
may take from the ground in the Raymond
Basin Area, and whether it erred in plac-
ing the burden of curtailing the overdraft
proportionately on all parties. Before dis-
cussing these issues on the merits, we will
consider certain contentions involving ju-
risdiction, procedure and remedy.
Preliminary contentions
[1] The complaint was filed on Sep-
tember 23, 1937, and the trial was not
-commenced until May 18, 1944. A dismis-
sal is made mandatory by section 583 of the
,Code of Civil Procedure, except in certain
cases, unless the action is brought to trial
within five years after the plaintiff has filed
1his action. It is settled, however, that in
computing the five-year period the time
*during which, "for all practical purposes,
going to trial would be impossible, whether
this was because of total lack of juris-
diction in the strict sense, or because pro-
-ceeding to trial would be both impracticable
and futile," is to be excluded. Christin v.
Superior Court, 9 Cal.2d 526, 533, 71 P.2d
..205, 208, 112 A.L.R. 1153 [time consumed


by appeal from order granting change of
venue]; Pacific Greyhound Lines v. Su-
perior Court, 28 Cal.2d 61, 64, 168 P.2d
665 [time during which one defendant was
in military service and stay might have
been granted]; Judson v. Superior Court,
21 Cal.2d 11, 14, 129 P.2d 361 [time de-
fendant avoided service of summons by
evasion and concealment]; Westphal v.
Westphal, 61 Cal.App.2d 544, 143 P.2d 405
[time during which co-plaintiff had an ap-
peal pending].

[2] The order of reference was made
on February 8, 1939; the referee's report
was filed on July 16, 1943, and, thereafter,
respondents proceeded with reasonable dis-
patch to bring the cause to trial. The is-
sues to be tried were dependent to a great
extent upon the facts to be ascertained by
the referee, and it would have been im-
practicable, if not futile, to proceed to
trial prior to the completion of the report.
It follows that the time consumed by the
reference should be excluded in computing
the five-year period, and that, therefore,
the action was not subject to dismissal un-
der the provisions of section 583.
The "Division of Water Resources, De-
partment of Public Works, State of Cali-
fornia," was appointed as referee pursuant
to section 24 of the Water Commission Act
which provided: "In case suit is brought in
any court of competent jurisdiction for de-
termination of rights to water or the use
of water the court may, in its
discretion, refer such a suit to the state
water commission for investigation of and
report upon any one or more or all of the
physical facts involved, in which event,
said commission may, in its discretion, base
its report solely upon its own investigation
or investigations or in addition thereto may
hold a hearing or hearings and take testi-
mony and the report filed by the commis-
sion upon such a reference for investiga-
tion by it shall be prima facie evidence of
the physical facts therein found *."

[3, 4] Every recent major water law de-
cision of this court has expressly or im-
pliedly approved the reference procedure
provided by section 24 and has recommend-
ed, in view of the complexity of the factual
issues in water cases and the great public


Cal. 23


r CC II -C1 d







207 PACIFIC REPORTER, 2d SERIES


interests involved, that the trial courts seek
the aid of the expert advice and assistance
provided for in that section. See Fleming
v. Bennett, 18 Cal.2d 518, 522 et seq., 116
P.2d 442; Meridian, Ltd. v. San Francisco,
13 Cal.2d 424, 457, 90 P.2d 537, 91 P.2d
105; Rancho Santa Margarita v. Vail, 11
Cal.2d 501, 558-559, 81 P.2d 533; City of
Lodi v. East Bay Municipal Utility Dist.,
7 Cal.2d 316, 341, 60 P.2d 439; Tulare Irr.
Dist. v. Lindsay-Strathmore Irr. Dist., 3
Cal.2d 489, 575, 45 P.2d 972; Peabody v.
City of Vallejo, 2 Cal.2d 351, 373-374, 40
P.2d 486;. Wood v. Pendola, 1 Cal.2d 435,
443, 35 P.2d 526.
In sustaining and approving the reference
procedure, it was stated in the Fleming case
that "all of the pertinent constitutional
safeguards were observed by the legisla-
ture in enacting the provisions of section
24 *." 18 Cal.2d at.page 528, 116
P.2d at page 447. The opinion did not
mention whether section 24 conflicted with
article'III, section 1, of the Constitution,
which provides for the separation of pow-
ers, or discuss whether such an order of
reference, invalidly subjects an executive
branch or division and its officers to the
control of the judiciary. It was, however,
expressly held, 18 Cal.2d 518, at pages 523-
525, 116 P.2d 442, that section 24 does not
provide for the exercise of judicial power
by the division, and implicit in the decision
is the conclusion that the separation of
governmental powers is observed. See al-
so Wood v. Pendola, 1 Cal.2d 435, 442, 35
P.2d 526. .In effect section 24 provides that
the court may appoint the division to act
as an investigator and an expert witness,
but there is nothing which authorizes the
courts to control or regulate, in any par-
ticular, the proper functions of the division
or the manner in which, pursuant to legis-
lative mandate, it shall proceed in conduct-
ing its examination and making its report.
The Fleming case also expressly held that
section 24 is not unconstitutional and void
as a special law providing for a variation
from the general practice and procedure in
the superior court in violation of article IV,
section 25, of the Constitution. 18 Cal.2d
518, at page 528, 116 P.2d 442; cf. Wood
v. Pendola, 1 Cal.2d 435, 442, 35 P.2d 526.


[5] There is no merit in the contention
that the reference should have been made
to the Department of Public Works as
the statutory successor of the Water Com-
mission. Since the abolition of the Water
Commission in 1921, it has been repeatedly
recognized that, under section 24, the court
may properly refer a pending water rights
case to the Division of Water Resources
or its predecessor, the Division of Water
Rights.2 Fleming v. Bennett, 18 Cal.2d
518, 521, 116 P.2d 442; Rancho Santa
Margarita v. Vail, 11 Cal.2d 501, 559, 81
P.2d 533; City of Lodi v. East Bay Munic-
ipal Utility Dist., 7 Cal.2d 316, 341, 60 P.2d
439; Tulare Irr. Dist. v. Lindsay-Strath-
more Irr. Dist., 3 Cal.2d 489, 575, 45 P.2d
972; Peabody v. City of Vallejo, 2 Cal2d
351, 373, 40 P.2d 486.
[6] The complaint is made that some of
the men who worked on the report of the
referee were not available for cross-exami-
nation at the time of the trial. It appears,
however, that the man who prepared the
report and supervised the investigation tes-
tified at length and that others who worked
on the report also testified at the trial. Ap-
pellant was afforded ample opportunity to
examine these witnesses, and there is no
showing that it sought to obtain the testi-
mony of persons who were not present. It
was permitted to introduce evidence con-
trary to the facts appearing in'the report,
and, under all the circumstances, there was
no denial of an opportunity to be heard in
opposition to the report.

[7] Appellant claims that the trial court
improperly enlarged the scope of the pro-
ceedings. In response to a request of the
referee for instructions, the court, after a
hearing, ruled that the issues should "em-
brace an adjudication of rights of the de-
fendants inter se and the rights of each
and every party as against each and every
other party." Although the answers of the
respective defendants did not present claims
against the other defendants and were not
served on them, the action was tried on the
theory that these matters were at issue, and
the ensuing judgment limiting the amount
of water that each could pump was also
based on this theory. The trial court has


2 Compare Water Code, 22, 2000, 2001.


a--- --


I


24 Cal.







CITY OF PASADENA v.
Cite as 20
authority, under section 24, to include, in
the matters which are to be submitted to
the referee and determined 'by the judg-
ment, any issues necessary to a proper de-
termination of the controversy. See Flem-
ing v. Bennett, 18 Cal.2d 518, 523, 116 P2d
442. It was within the discretion of the
trial court to determine whether it was
necessary to adjudicate inter se the amount
of water to which each party was entitled,
and the record indicates that it would have
been impracticable to decide the matter
solely between plaintiff and each defendant.
Moreover, appellant had ample time to pre-
pare its case after notice of the scope of
the proceedings, and there is no basis for
any claim that it was misled to its prejudice
or that it was denied due process of law.

[8] The objection is also made that the
court erred in allocating water without the
joinder of a number of private users who
pumped comparatively small amounts. The
referee filed a preliminary report which
stated that it would be impracticable to
attempt to-include all such parties. It
recommended, however, that certain named
0r parties who used fairly substantial amounts
be joined in the action, and the court or-
dered them brought in over the objections
of appellant. No request was made by ap-
pellant for.the inclusion of any party who
had not been- joined, and there is no show-
ing that its interest was injuriously affect-
ed by the failure to require the joinder of
all possible claimants. See Smith v. Cuca-
monga Water Co., 160 Cal. 611, 617, 117
P. 764. The line must be drawn somewhere
in order to bring the proceeding within
practical bounds, and it would have been
impossible to reach a solution of the prob-
lems involved and to render a valid judg-
ment if jurisdiction to make an allocation
depended upon the joinder of every person
having some actual or potential right to
the water in the. basin and its sources of
supply. The persons not made parties are,
of course, not bound by the judgment, nor
are they. injured by the injunction.

[9, 10] Appellant further contends that
it cannot be enjoined since the water which
it produces is devoted to a public use.
Reliance is placed upon cases holding that
when a public use has attached, inverse
S207 P.2d-2y1


CITY OF ALHAMBRA Cal. 25
7 P.2d 17
condemnation proceedings may be invoked
and compensation in lieu of a prohibitory
injunction is preferred in most circum-
stances. See Hillside Water Company v.
Los Angeles, 10 Cal.2d 677, 688, 76 P.2d
681; Peabody v. City of Vallejo, 2 Cal.2d
351, 377-380, 40 P.2d 486; Newport v. Tem-
escal Water Company, 149 Cal. 531, 538,
87 P. 372, 6 L.R.A.,N.S., 1098. This rule
has its foundation chiefly in the inconven-
ience to the public if service is interrupted
by the issuance of an injunction to re-
strain the use, Miller & Lux v. San Joaquin
Light & Power Corp., 8 Cal.2d 427, 436,
65 P.2d 1289; Burr v. Maclay Rancho
Water Co., 160 Cal. 268, 280, 116 P. 715,
and has no application to the problem
which confronts us here. The purpose of
this litigation is the protection of the in-
terests of both public and private users by
preventing further depletion of the water
supply. Excepting appellant, all parties,
public as well as private, have consented to
be enjoined to effect this purpose. There
is nothing in the record to indicate that the
public interest would be better served by
depriving private users of their pumping
rights'and compensating them therefore.
If this were done they would have to pur-
chase their water from municipalities or
public utilities which take water from the
same underground area, and the total sup-
ply available to the public would not be
increased. Morever, it would be exceed-
ingly difficult to fix the monetary loss of
each private party and then apportion it
among the numerous public users. In these
circumstances, the trial court was justified
in concluding that the rule against enjoin-
ing public utilities was not applicable.

Findings and judgment
The Raymond Basin. Area, a field of
ground water located at the northwest end
of San Gabriel Valley, includes the city
of. Sierra Madre, almost all of the city of
Pasadena, and portions of South Pasadena,
San Marino, and Arcadia. The field of
ground water contains alluvium consisting
of sands, gravels and other porous mate-
rials through which water percolates. The
northern side is formed by the San Gabriel
range of mountains which rise back of the
valley to a general elevation of-from 5,000


I _I


~i~a~ -- ---




S IT-- aatL4flUS~*Ii-jR O &-...- i~ V*.lz;~~ -;h;~L -'.-i .-*h 9P-i6~~ a iJ~.i~


26 Cal.


207 PACIFIC REPORTER, 2d SERIES


to 6,000 feet. The area comprises 40
square miles and is separated from the
rest of the valley along its southern bound-
ary by the Raymond Fault, sometimes known
as Raymond Dike, a natural fault in the
bedrock constituting a "Barrier in the al-
luvium which greatly impedes
the sub-surface movement of water from
the area, although it does not entirely stop
it, thus creating a vast underground stor-
age reservoir." There is a pronounced
slope to the south from elevations of 1,000
feet above sea level at the mountains to a
general elevation of 500 to 700 feet at
Raymond Fault.
In this part of the state there is ordi-
narily a series of wet years followed by
a number of dry years, making it necessary
during periods of above-normal rainfall
to store water for future use. It appears,
however, that the ground water storage
capacity is adequate to store the excess
during wet years for the following dry
years.
Natural underground formations divide
the area into two practically separate units.
The Western Unit, the larger of the two,
consists of the Monk Hill Basin, which is
to the northwest, and the Pasadena Sub-
area. The Eastern Unit, or Santa Anita
Sub-area, lies immediately to the east of
the Pasadena Sub-area. At the present
water table elevations movement of ground
water from the Western to the Eastern
Unit is so small as to be immaterial but
it might be increased by an overdraft in
the Eastern Unit. Movement from the
Eastern to the Western Unit is almost
totally lacking.
Our concern is with the Western Unit
where the principal ground water move-
ment is from north and west of Monk Hill
to the south and east and across Raymond
Fault. The water in this unit is replenished
by rainfall, by return water arising from
the use of water in the unit, and by the
runoff and underflow from the San Gabriel
Mountains to the north and from the San
Rafael hills to the west. Appellant's wells,
from which it obtains all its production,
are in the southeastern part of this unit,
and the.underlying water constitutes one
ground water body which is a common
source of all parties taking water there-


from. The water pumped from the ground
in the Western Unit has exceeded the safe
yield thereof in every year since 1913-14
(commencing October 1) except during the
years 1934-35 and 1936-37. The safe yield
of the unit was found to be 18,000 acre
feet per year, but the average annual draft
was 24,000 acre feet, resulting in an average
annual overdraft of 6,000 feet.
With respect to the water rights ac-
quired by the various parties it was stipu-
lated by all of them, including appellant,
that "all of the water taken by each of
the parties to this stipulation and agree-
ment, at the time it was taken, was taken
openly, notoriously and under a claim
of right, which claim of right was contin-
uously and uninterruptedly asserted by it
to be and was adverse to any and all
claims of each and all of the other parties.
joining herein."
The findings set forth in terms of acre
feet per year "the highest continuous pro-
duction of water for beneficial use in any
five (5) year period prior to the filing of
the complaint by each of the parties in
each of said units, as to which there has.
been no cessation of use by it during any
subsequent continuous five (5) year period.'
This was designated, for convenience, the
"present unadjusted right" of each party,
and the court concluded that each party
owned "by prescription" the right to take
a certain specified amount of water, and:
that the rights of the parties were of
equal priority. The total of the unadjust-
ed rights for the Western Unit was found
to be 25,608 acre feet per year, and water
pumped by non-parties to the action was
340 acre feet per year. The court also
found that a continued draft in these
amounts will result in an unreasonable de-
pletion and the eventual destruction of the
ground water as a source of supply; that
any increase in the amounts taken in the
Eastern Unit will deplete the ground water
supply in that unit; that in order to pro-
tect the supply it is necessary that the
parties in the Western Unit be limited by
reducing the "present unadjusted right of
each such party in the proportion that the
safe yield of said unit, less the water taken
therein by non-parties hereto, bears to the
aggregate of such rights of parties hereto








CITY OF PASADENA v.
Cite a~ 20
in said unit, and that each of the parties
pumping or otherwise taking water from
the ground in the Eastern Unit be limited
to the amount of its present unadjusted
Tight." The amount of water limited to
each party, designated the "decreed right,"
was set out in the findings, and this alloca-
tion gave each party about two-thirds of
-the amount it had been pumping.
The court enjoined all pumping in ex-
cess of the decreed right and appointed a
"Water Master" to enforce the provisions
of the judgment. It reserved jurisdiction to
modify the judgment or make such further
-orders as might be necessary for adequate
enforcement or for protection of the waters
in the Raymond Basin Area from contam-
ination.
Sufficiency of evidence
Appellant takes the. position that the
:ground water in the Western Unit is not
-contained in a single storage basin or reser-
voir as found by the court, but, rather,
-flows in certain defined underground
streams from the northwestern portion to
the southeastern section in much the same
manner as water flows in surface streams,
id that these streams, together with a
-.iow of water from the Eastern Unit, con-
verge at the lower level where appellant's
wells are located. It argues that its taking
-of water cannot possibly injure the upper
-claimants because once the water has
reached a lower level it cannot flow back
-upstream to the wells of the other parties.
The report states that no substantial
quantity of water from the Eastern Unit
now reaches appellant's wells. It also in-
-dicates that the ground water of the West-
,ern Unit is analogous to water stored in
a large lake or reservoir, through which
several currents slowly flow from inlet to
-outlet. Raymond Fault is similar to a
dam in that it impedes the movement of
water and backs it up over a considerable
area, and pumping tests established that
when the water table was lowered in one
well, the effect could be measured in wells
almost two miles away. These tests were
conducted over comparatively short peri-
ods of time; the greatest being about three
days, and since the water moves very slow-
ly thrc.ugh the alluvium, it could be in-


CITY OF ALHAMBRA Cal. 27
7 r.2d 17
ferred that the effect would have been
much more widespread if the test-pumping
had been continued for a longer time.
[11] There is nothing in the record
which would compel a finding that the dif-
ference in elevation between the Monk
Hill Basin and the Pasadena Sub-area is
so great that wells in the northwest will be
entirely unaffected by long-continued ex-
cessive pumping elsewhere in the unit.
Moreover, as the referee points out, the
serious overdraft is in the area where ap-
pellant takes its water, and its pumping
directly reduces the supply where water is
most needed. The record shows that in
view of the smaller overdraft in the Monk
Hill Basin the parties situated there suf-
fered a greater ratable cut under the in-
junction than persons in the Pasadena Sub-
area, and that appellant has been helped
rather than injured by inclusion of the
Monk Hill Basin as part of the under-
ground storage area.
[12] Appellant contends that the safe
yield was greatly understated, and that
there was little, if any, overdraft. 18,000
acre feet per year was found to be the safe
yield in the Western Unit, and this figure
was based upon the report of the referee
which calculated the amount from changes
in the water stored underground and in the
water table elevation as compared with the
amount of water extracted by pumping. It
is asserted that the referee failed to meas-
ure and include the underflow from the
San Gabriel Mountains and the waters con-
served upon the surface by artificial means.
All sources of underground water, however,
were automatically included by the method
of calculation employed by the referee, and
it was not necessary to make the specific
measurements mentioned by appellant.
Moreover, it is obvious from many state-
ments in the report that surface conser-
vation and underflow were given full con-
sideration by the referee.

The main issue
[13] There can be no question that the
trial court had authority to limit the taking
of ground water for the purpose of pro-
tecting the supply and preventing a per-
manent undue lowering of the water table.


___ _R_~slBI~Pll~sY~*R~~gb~Di~~


T-~t49~ jr~ ~~~i








207 PACIFIC REPORTER, 2d SERIES


Burr v. Maclay Rancho Water Co., 154
Cal. 428, 438, 98 P. 260; City of San Ber-
nardino v. City of Riverside, 186 Cal. 7,
16, 198 P. 784; cf. Allen v. California
Water & Telephone Co., 29 Cal.2d 466,
485-486, 176 P.2d 8. The main problems
presented are which of the parties should
bear the burden of curtailing the total pro-
duction of the unit to the safe yield and
what proportion, if any, of the pumping
by each particular party should be restrict-
ed. Since the stipulation made by the oth-
er parties as to the reduction in pumping
by each is not binding upon appellant, it is
necessary to determine appellant's rights
in relation to. the other producers in the
same manner as if there had been no agree-
ment.
[14-16] 'The question of who shall bear
the burden of curtailing the overdraft,
and in what proportion, depends upon the
legal nature and status of the particular
water right held by each party. Rights in
water in an underground basin, so far as
pertinent here, are classified as overlying,
appropriative, and prescriptive. Generally
speaking, an overlying right, analogous
to that of a riparian owner in a surface
stream, is the right of the owner of the
land to take water from the ground under-
neath for use on his land within the basin
or watershed; the right is based on owner-
ship of the land and is appurtenant thereto.
See Hillside Water Company v. Los An-
geles, 10 Cal.2d 677, 686, 76 P.2d 681;
Miller v. Bay Cities Water Co., 157 Cal.
256, 279-280, 107 P. 115, 27 L.R.A.,N.S.,
772; 26 Cal.Jur. 271-277; 2 Wiel, Water
Rights [3d ed., 1911], 1100-1105, pp.
1040-1045. The right of an appropriator
depends upon an actual taking of water.
See 26 Cal.Jur. 277. The term "appropria-
tion" is said by some authorities to be prop-
erly used only with reference to the tak-
ing of water from a surface stream on
public land for non-riparian purposes. See
Wiel, Water Rights [3d ed., 1911] 228,
1107, 1158, 1159, and 231 in the "reprint
ed." of the 3d ed.; Farnham, Waters and
Water Rights [1904] 672a; 56 Am.Jur.
599. The California courts, however, use
the term to refer to any taking of water
for other than riparian or overlying uses.
City of San Bernardino v. City of River-


side, 186 Cal. 7, 13-14, 198 P. 784; Burr
v. Maclay Rancho Water Co., 154 Cal.
428, 436, 98 P. 260; Katz v. Walkinshaw,
141 Cal. 116, 135, 70 P. 663, 74 P. 766, 64
L.R.A. 236, 99 Am.St.Rep. 35; see 26
Cal.Jur. 273-274. Where a taking is wrong-
ful, it may ripen into a prescriptive right.

[17,18] Although the law at one time
was otherwise, it is now clear that an over-
lying owner or any other person having a
legal right to surface or ground water may
take only such amount as he reasonably
needs for beneficial purposes. Katz v.
Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P.
766, 64 L.R.A. 236, 99 Am.St.Rep. 35;
Peabody v. City of Vallejo, 2 Cal.2d 351,
40 P.2d 486; Cal.Const., art. XIV, 3.
Public interest requires that there be the
greatest number of beneficial uses which
the supply can yield, and water may be ap-
propriated for beneficial uses subject to the
rights of those who have a lawful priority.
Peabody v. City of Vallejo, 2 Cal.2d 351,
368, 40 P.2d 486. Any water not needed
for the reasonable beneficial uses of those
havin" prior rights i -u"s nor surnoli
water. In California surplus water may
rightfully be appropriated on privately
owned land for nonoverlying uses, such as-
devotion to a public use or exportation be-
yond the basin or watershed. Peabody v.
City of Vallejo, 2 Cal.2d 351, 368-369, 40
P.2d 486; City of San Bernardino v. City
of Riverside, 186 Cal. 7, 29, 30, 198 P. 784;
Burr v. Maclay Rancho Water Co., 154 Cal.
428, 436, 98 P. 260; Katz v. Walkinshaw,
141 Cal. 116, 135, 70 P. 663, 74 P. 766,
64 L.R.A. 236, 99 Am.St.Rep. 35; see 26
Cal.Jur. 32 et seq., 273-274.

[19-22] It is the policy of the state to
foster the beneficial use of water and dis-
courage waste, and when there is a surplus,
whether of surface or ground water, the
holder of prior rights may not enjoin its
appropriation. Peabody v. City of Vallejo,
2 Cal.2d 351, 368-369, 372, 40 P.2d 486;
see 26 Cal.Jur. 277. Proper overlying use,
however, is paramount, and the right of an
appropriator, being limited to the amount
of the surplus, must yield to that of the
overlying owner in the event of a shortage,
unless the appropriator has gained pre-
scriptive rights through the taking of non-


--- II -I-~s~i~T----~----~-- --~-C~T-_------ --ee~--aqll~6-


28 Cal.








CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


surplus waters. As between overlying own-
ers, the rights, like those of riparians, are
Scorrelative and are referred to as belong-
ing to all in common; each may use only
his reasonable share when water is insuffi-
cient to meet the needs of all. Katz v.
Walkinshaw, 141 Cal. 116, 70 P. 663, 74
P. 766, 64 L.R.A. 236, 99 Am.Rep.St. 35;
see 26 Cal.Jur. 269-273, 276; cf. 25 Cal.
Jur. 1063-1067. As between appropriators,
however, the one first in time is the first in
right, and a prior appropriator is entitled to
all the water he needs, up to the amount
that he has taken in the past, before a sub-
sequent appropriator may take any. City
of San Bernardino v. City of Riverside, 186
Cal. 7, 26-28, 198 P. 784; cf. Civ.Code,
1414.
[23,24] Prescriptive rights are not ac-
quired by the taking of surplus or excess
water, since no injunction may issue against
the taking and the appropriators may take
the surplus without giving compensation;
however, both overlying owners and appro-
priators are-entitled to the protection of
the courts against any substantial infringe-
ment of :their -rights in water which they
reasonably.-and beneficially need. Peabody
v. City of Vallejo, 2 Cal.2d 351, 368-369,
e'374, 40: P.2d 486. Accordingly, an appro-
priative taking of water which is not sur-
plus is wrongful and may ripen into a pre-
scriptive right where the use is actual, open
and notorious, hostile and adverse to the
original owner, continuous and uninter-
rupted for -the statutory period of five
years, and under claim of right. City of
Sari Bernardino v. City of Riverside, 186
Cal. 7, 22-23, 198 P. 784; Katz v. Walkin-
shaw, 141 Cal. 116, 115, 70 P. 663, 74 P. 766,
64 L.R.A. 236, 99 Am.St.Rep. 35; 25 Cal.
Jur. 1178, 1157-1158; 1 Cal.Jur. 585; 26
Cal.Jur. 278-279; cf. Wutchumna Water
Co. v. Ragle, 148 Cal. 759, 764-765, 84 P.
162. To perfect a claim based upon pre-
scription there must, of course, be conduct
Which constitutes an actual invasion of the
former owner's rights so as to entitle him
to bring an action. City of Los Angeles
v. City of Glendale, 23 Cal.2d 68, 79, 142 P.
2d 289. Appropriative and prescriptive
rights to ground water, as well as the rights
of an overlying owner, are subject to loss
by adverse user. This is in accord with the


rule announced in cases dealing with water
in a surface stream. See Yankee Jim's
Union Water Co. v. Crary, 25 Cal. 504, 508-
509, 85 Am.Dec. 145; Big Rock Mutual
Water Co. v. Valyermo Ranch Co., 78 Cal.
App. 266, 273, 248 P. 264; Peabody v. City
of Vallcjo, 2 Cal.2d 351, 374, 40 P.2d 486;
Duckworth v. Watsonville Water & Light
Co., 150 Cal. 520, 529-532, 89 P. 338; Davis
v. Gale, 32 Cal. 26, 35, 91 Am.Dec. 554; 3
Farnham, Waters and Water Rights [1904]
680a, p. 2106; 1 Wiel, Water Rights
[3d ed., 1911], 580, pp. 625-626; 56 Am.
Jur. 773.
[25] In the present case some of the
parties, including owners of ranches, golf
clubs, and cemeteries, have pumped water
solely for use on their own land, and their
rights at the outset were overlying. The
principal takers of water, however, are
public utility corporations and municipal-
ities which have either exported water or
have used it within the Western Unit for
municipal purposes or for sale to the pub-
lic, and their taking, when commenced, was
entirely appropriative. City of San Ber-
nardino v. City of Riverside, 186 Cal. 7, 29,
198 P. 784; Eden Township Water Dist.
v. Hayward, 218 Cal. 634, 640, 24 P.2d 492.
Appellant exports about three-fourths of
the water produced by it to customers lo-
cated outside the area, and it claims over-
lying rights as to the other one-fourth
which it takes. As to the exported water it
is clear that its rights could not be overly-
ing in character, but are either appropria-
tive or prescriptive.
It follows from the foregoing that, if no
prescriptive rights had been acquired, the
rights of the overlying owners would be
paramount, and the rights of the appropria-
tors would depend on priority of acquisition
under the rule that the first appropriator
in time is the first in right. The latest in
time of the appropriations would then be
the first to be curtailed in limiting total pro-
duction of the area to the safe yield. If
such were the case, the overdraft could be
eliminated simply by enjoining a part of
the latest appropriations, since the record
shows that there is ample water to satisfy
the needs of all the overlying users and
most of the appropriators, and appellant's
appropriative rights would depend primarily


Cal. 29


I I_---I I~--


- I-- I------ i-









-2f17j :-7, =iO. E3C TER. 2d SlRIES


upon evidence of pi ori.ty in ti:r.; acc'-;--
tion.
The principal dispute bewe- a:peli nt
and respondent;, however, con:-r- whe--
er any water rights in :he V,e-- rn U~t
have become prescriptive and, if 5s. to wv.at
extent. Respondents as-Srt that :-. rignel
of all the parties, including b-;:h overly-
ing users and appropria.,rs, ha--; becor-e
mutually prescriptive against al t-he other
parties and, accordingly, that a!! rights are
of equal standing, with none prior or para-
mount. Appellant, on the other hand, con-
tends that in reality no prescriptive rights
have been acquired, and that there has been
no actionable invasion or injury of the right
of any party using water because each
party has been able to take all the water it
needed and no party has in any manner pre-
vented a taking of water by any other party.
It would follow, under appellant's theory,
than not even an overlying owner could
have obtained an injunction against a sub-
sequent taking.
We must look, therefore, to see if the dis-
puted elements for a prescriptive right are
shown by the record. Most of the factors
are covered by the stipulation in which all
the parties, including appellant, joined,
namely, that "all of the water taken by
each of the parties to this stipulation and
agreement was, at the time it was taken,
taken openly, notoriously, and under a claim
of right, which claim of right was continu-
ously and uninterruptedly asserted by it to
be and was adverse to any and all claims
of each and all of the other parties join-
ing herein." Two necessary elements are
omitted: The length of the period over
which the adverse user continued and the
nature and extent of actual adverse user, ii
any.
The evidence clearly supports the finding
which designates in terms of acre feet pe;
year "the highest continuous production o
water for beneficial use in any five (5
year period prior to the filing of the cor
plaint by each of the parties in each of sail
units, as to which there has been no cessa
tion of use by it during any subsequent con
tinuous five (5) year period."
The record shows :hat there has been a
actual adverse user of water in the Wester


Unit. There was an invasion, to some ex-
tent at least, of the rights of both overlying
owners and appropriators commencing in
the year 1913-1914, when the overdraft first
occurred. Each taking of water in excess
of the safe yield, whether by subsequent ap-
propriators or by increased use by prior
appropriators, was wrongful and was in in-
jury to the then existing owners of water
rights, because the overdraft, from its very
beginning, operated progressively to reduce
the total available supply. Although no
owner was immediately prevented from tak-
ing the water he needed, the report demon-
strates that a continuation of the overdraft
would eventually result in such a depletion
of the supply stored in the underground
basin that it would become inadequate.
The injury thus did not involve an immedi-
ate disability to obtain water, but, rather,
it consisted of the continual lowering of the
level and graudual reducing of the total
amount of stored water, the accumulated
effect of which, after a period of years,
would be to render the supply insufficient
to meet the needs of the rightful owners.
/ [26,27] The proper time to act in pre-
serving the supply is when the overdraft
commences, and the aid of the courts would
come too late and be entirely inadequate if,
as appellant seems to suggest, those who
possess water rights could not commence
legal proceedings until the supply was so
greatly depleted that it actually became dif-
ficult or impossible to obtain water. Where
the quantity withdrawn exceeds the average
annual amount contributed by rainfall, it is
manifest that the underground store will be
Gradually depleted and eventually exhaust-
ed, and, accordingly, in order to prevent
Such a catastrophe, it has been held proper
to limit the total use by all consumers to an
amount equal, as near as may be, to the
g average supply and to enjoin takings in such
r quantities or in such a manner as would de-
f stroy or endanger the underground source
Sof water. City of San Berna?-dino v. City
- of Riverside, 186 Cal. 15-16. 198 P. 784;
d Burr v. Maclay Rancho Water Co., 154 Cal.
- 428, 438, 98 P. 260. There is, therefore, no
- merit to the conte:.:ion that fhe owners of
water rights were not injured by the addi-
n tional appropriations made a-fer all surplus
n waters were taken, and they clearly were


30 Cal.


*11 W ~ -


_ ~Z~P~.~ ~a"L--db---sa







CITY OF PASADENA v.
Oite as 20
entitled to obtain injunctive relief to ter-
/f minate all takings in excess of the surplus as
soon as it became apparent from the lower-
ing of the well levels that the underground
basin would be depleted if the excessive
pumping were continued.
The lowering of the water table resulting
from the overdraft was plainly observable
in the wells of the parties, and the records
of water levels in appellant's own wells
afford an excellent example of the yearly
changes from about 1919 to 1937, when the
complaint herein was filed. Using figures
taken at about the same time each year to
minimize the effect of seasonal variations,
it appears that the surface of the water in
appellant's well No. 1 was at an elevation
of 559 feet above sea level in August, 1920,
as compared with 485 feet in August, 1937,
amounting to a drop of 74 feet. Appellant's
well No. 4 was measured at the 570-foot
level in August, 1920, and at 499 feet in
September, 1937, a drop of 71 feet. Ap-
pellant's well No. 5 was-at 553.1 feet in
August; 1928, and at 514 feet in August,
1947, a drop of 39.1 feet in the shorter peri-
-od of nine years. Well No. 6 was at the
542-foot level in August, 1919, at 568.2 feet
Sin November, 1924, and at 515 feet in Au-
gust, 1937, a net drop of 27 feet. Appel-
lant's well No. 7 was at 565.2 feet in Octo-
ber, 1924, and at 484 feet in August, 1937,
a drop of 812 feet. Well No. 8 has records
only for 1937 and 1938, and there are no
records for two other wells, Nos. 2 and 3,
which appellant has apparently abandoned.

V[28,29] This evidence is clearly suf-
ficient to justify charging appellant with
notice that there was a deficiency rather
than a surplus and that the appropriations
causing the overdraft were invasions of the
rights of overlying owners' and prior ap-
propriators. The elements of prescription
being present in the record, the statute of
limitations ran.against the original lawful
holders of water rights to whatever extent
their rights were invaded.
[30] It must next be determined wheth-
er the rights of all of the prior owners were
invaded and whether all or only a part of
the right of any particular owner was dam-
aged. It has been established that the
rights of appropriators as well as of over-


CITY OF ALHAMBRA Cal. 31
7 P.2d 17
lying owners will be protected by the courts
and that an invasion of either type of right
will start the running of the statute.
Where, as here, subsequent appropriators
reduce the available supply and their acts,
if continued, will render it impossible for
the holder of a prior right to pump in the
future, there is an enjoinable invasion. In
this respect there is no difference between
an overlying owner and an appropriator.
Although neither may prevent a taking of
surplus waters, either may institute legal
proceedings to safeguard the supply once a
surplus ceases to exist and may enjoin any
additional user beyond the point of safe
yield.
SCases are cited for the proposition that
an appropriator's rights are not invaded if
he continues to receive the quantity of
water to which he is entitled. These cases,
however, do not deal with the problem of
gradual depletion of water stored in a basin
or lake, but, rather, with surface streams
or ditches in which water flows but is not
retained for future use. The type of injury
there considered would immediately de-
prive the owner of water, and the language
in the opinions does not apply to an inva-
sion of rights in a stored supply of water to
be used only in future years. See Faulkner
v. Rondoni, 104 Cal. 140, 147, 37 P. 883;
Peck v. Howard, 73 Cal.App.2d 308, 328,
167 P.2d 753; City of San Diego v. Cuya-
maca Water Co., 209 Cal. 105, 133, 287 P.
475.

[31] Neither the overlying owners nor
the appropriators took steps to obtain the
aid of the courts to protect their rights un-
til the present action was instituted, many
years after the commencement of the over-
draft, and at first glance it would seem to
follow that the parties who wrongfully ap-
propriated water for a period of five years
would acquire prior prescriptive rights to
the full amount so taken. The running of
the statute, however, can effectively be in-
terrupted by self help on the part of the
lawful owner of the property right involved.
Unlike the situation with respect to a sur-
face stream where a wrongful taking by an
appropriator has the immediate effect of
preventing the riparian owner from receiv-
ing water in the amount taken by the wrong-


- ---- --








207 PACIFIC REPORTER, 2d SERIES


doer, the owners of water rights in the
present case were not immediately prevent-
ed from taking water, and they in fact con-
tinued to pump whatever they needed. As
we have seen, the Raymond Basin area is
similar to a large lake or reservoir, and
water would be available until exhaustion
of the supply. The owners were injured
only with respect to their rights to continue
to pump at some future date. The invasion
was thus only a partial one, since it did
not completely oust the original owners
of water rights, and for the entire period
both the original owners and the wrong-
doers continued to pump all the water they
needed.
.The pumping by each group, however,
actually interfered with the other group
in that it produced an overdraft which
would operate to make it impossible for all
to continue at the same rate in the future.
If the original owners of water rights had
been ousted completely or had failed to
pump for a five-year period, then there
would have been no interference whatso-
ever on the part of the owners with the
use by the wrongdoers, and the wrongdoers
would have perfected prior prescriptive
rights to the full amount which they
pumped. As we have seen, however, such
was not the case, and, although the pumping
of each party to this action continued with-
out interruption, it necessarily interfered
with the future possibility of pumping by
each of the other parties by lowering the
water level. The original owners by their
own acts, although not by judicial assist-
ance, thus retained or acquired a right to
continue to take some water in the future.
The wrongdoers also acquired prescriptive
rights to continue to take water, but their
rights were limited to the extent that the
original owners retained or acquired rights
by their pumping.
A partial analogy may be found in Smith
v. Hampshire, 4 Cal.App. 8, 87 P. 224, where
the appellant had constructed a ditch across
the respondents' land and used it adversely
for ten years, but the respondents, for six
years, had used a portion of the ditch
jointly with but adversely to appellant. It
was held that both had acquired rights in
the ditch and that respondents' acts, being
hostile to appellant's asserted claim of ex-


elusive right, operated to conserve respond-
ents' right to use the ditch. The court said
4 Cal.App. at page 11, 87 P. at page 225:
"While respondents could not acquire a pre-
scriptive right to a right of way over their
own land, they could destroy appellant's
claim of exclusive right by open, peaceable,
notorious, and continuous adverse use, and
thus establish their right (as against his
asserted, exclusive claim) to use the ditch
themselves for a limited purpose and com-
mingle their water with his in so doing."
We need not determine whether the over-
lying owners involved here retained simply
a part of their original overlying rights
or whether they obtained new prescriptive
rights to use water. See Glatts v. Henson,
31 Cal.2d 368, 370-372, 188 P.2d 745. The
question might become important in order
to ascertain the rights of the parties in the
event of possible future contingencies, but
these may never happen.

[32] Adoption of appellant's position
that the water must be allocated, at least
as between the municipalities and public
utility companies, strictly on the basis of
priority in time of appropriation would not
only ignore the fundamental principle that
the statute of limitations runs against .per-
sons who fail to act when their rights are
invaded, but it would result in an unequal
sharing of the burden of curtailing the over-
draft in that all pumping conducted under
authority of certain of the later appropria-
tions would be completely eliminated,
whereas no restriction in amount would be
imposed upon pumping based on earlier ap-
propriations. Such a result does not appear
to be justified where all of the parties have
been producing water from the underground
basin for many years, and none of them
have acted to protect the supply or prevent
invasion of their rights until this proceed-
ing was instituted. Moreover, it seems
probable that the solution adopted by the
trial court will promote the best interests
of the public, because a pro tanto reduction
of the amount of water devoted to each
present use would normally be less disrup-
tive than total elimination of some of the
uses.
We hold, therefore, that prescriptive
rights were established by appropriations


- [Si~*~-islr~~an~. . . .yd~i


32 Cal.







CITY OF PASADENA v.
Cite as 20
made in the Western Unit subsequent to the
commencement of the overdraft, that such
rights were acquired against both overlying
owners and prior appropriators, that the
overlying owners and prior appropriators
also obtained, or preserved, rights by reason
of the water which they pumped, and that
the trial court- properly concluded that the
production of water in the unit should be
limited by a proportionate reduction in the
amount which each party had taken
throughout the statutory period.

Other contentions
[33] The water allowed each party by
the trial court was measured by the amount
taken over a five year perice as to which
there had been no cessation of use during
any subsequent five year period. Appellant
argues that, in determining whether there
had 'been a loss of rights, the court should
have applied the shorter three year limita-
tion prescribed by section 20a of the Water
Commission Act, which was in effect prior
to 1943. Deering's Gen. Laws, Act 9091,
20a, now 1241 of- the Water Code. This
section provided: ""When the party entitled
?" the use of water fails to beneficially use
,11 or any part of the water claimed by him,
for which a right of use has vested, for-
the purpose for which it was appropriated
or adjudicated, for a period of three years,
such unused water shall revert to the public,
and shall be regarded as unappropriated
public water." This section, however, is not
applicable here. The primary purpose of
the act was to create a system for issuing
licenses and permits for'appropriation of
surplus water; see l, Id, 11, 15, 16, Deer-
ing's Gen. Laws, Act 9091, and it is reason-
ably clear that section 20a was intended to
refer only to water which had been appro-
priated under such a license or permit.
Water in an underground basin is not em-
braced by the licensing system, because sec-
tion 42 of the act provides that the term
"water," as used in sections of the act re-
lating-to permits orlicenses, "shall be inter-
preted to refer only to surface water, and
to subterranean streams flowing through
known and definite channels." Deering's
Gen. Laws, Act 9091, 42. There is no
claim that any of the rights to water in-
volved in the present case were obtained un-
(- 207 P.2d--3


CITY OF ALHAMBRA Cal. 33
7 F.2d 17
der such a permit or license, and the ground
water in the Raymond Basin Area does not
flow in known and definite channels with-
in the meaning of section 42.
[34,35] In 1934, less than four years
before the commencement of this action, the
city of Pasadena began to take a quantity
of water from the San Gabriel River, which
is not a source of supply to the Raymond
Basin Area. This diversion was terminated
in 1941 as part of the settlement of litiga-
tion brought by users of water from the.
river. Appellant contends that when the
city imported water from the San Gabriel
River, it reduced the amount which it took
from the underground basin and, therefore,
that it is now barred by estoppel and laches
from taking out of the basin more water
than the maximum amount pumped during
the period in which it used water from the
river. The trial court found, however, that
appellant was not induced to take any action
by reason of the importation and that.the
city was not stopped. The finding is sup-
ported by the record and, accordingly, is
conclusive on this appeal. The claim'of
laches is sufficiently answered by the failure
to show prejudice and the fact that the
time involved was less than five years prior
to commencement of the action.
[36] There is no merit to the assertion
that, because of considerations of public
policy, the city of Pasadena should be com-
pelled to purchase some of its water from:
the Metropolitan Water, District of South-
ern California instead of exercising its
right to. take water from the underground
basin. Although the city has the right to
purchase water from' the district, it does
not follow that the city should be compelled
to do so in order to afford a larger supply
to other parties.
[37] The failure of the city of Pasa-
dena to capture and return to the under-
ground basin storm waters and waters used
to flush streets, fight fires, and flow sewage
does not, as claimed by appellant, constitute.
waste in violation of section 3 of article
XIV of the California Constitution..
Storm drains used for. flood control car-
ried some water outside the area, but this
does not mean it was wasted, and there is
no evidence that there was any waste in







207 PACIFIC REPORTER, 2d SERIES


connection with the use of water in or-
dinary and necessary municipal activities.
[38] A water exchange agreement, en-
forced by the judgment but not signed by
appellant, provided that the city of Pasa-
dena should restrict its pumping in the
Monk Hill Basin and take the remainder
of its share of water from elsewhere in the
Western Unit, Appellant cannot properly
complain of this provision unless it is in-
jured thereby, and it could not be damaged
unless the city pumped water in such quan-
tities in the immediate vicinity of appel-
lant's wells as to render it difficult or im-
possible for appellant to obtain the amount
of water to which it is entitled. No rea-
sonable likelihood of such an occurrence is
shown, but, in the event that such a local
shortage should take place, appellant may
obtain relief under that portion of the
judgment reserving jurisdiction to make
such modifications as may become neces-
sary.
[39] It is next argued that the injunc-
tion should not have limited appellant to a
fixed number of acre feet of water a year
but, rather, that unrestricted pumping
should be allowed so long as the water in
the wells is above some specified level. Al-
though this might be a proper method of
safeguarding the supply of water in the
underground basin, there is nothing in the
record which compels a finding that the
method of conservation adopted by the trial
court is improper or that it would result
in an undue raising of the water table.
Moreover, ample protection against such a
danger is afforded by the provisions of the
decree reserving jurisdiction in the trial
court to modify the judgment and requir-
ing the Water Master to keep monthly re-
cordings of the depth of water in all wells.
[40] The court did not err in refusing
to admit evidence offered to rebut the re-
port of the referee with respect to appel-
lant's water production from 1931 to the
end of 1938. Section 24 of the Water
Commission Act provides that "No excep-
tion shall be considered except in the
court's discretion, or for good cause shown,
unless it shall appear that the matter ol
the exception had theretofore been pre.
sented to the commission in the form of ar


objection." Ci. Water Code, 2017-2019.
Appellant did not comply with this require-
ment and showed no good reason why it
did not do so.

[41] All parties except appellant stipu-
lated that each of them who had diverted
afterr from streams leading to the under-
ground basin should be restricted to an
amount measured by the maximum capacity
of its diversion works "as the same existed
at any time within five (5) years prior to
October 1, 1937," which was approximately
one week after commencement of the ac-
tion. Pursuant to this stipulation the
court concluded that each of these diverters
had the right to take this amount as against
all parties other than appellant, but en-
joined any increase in the amount to be
taken and expressly stated that it was
making no determination as to the existence
of such rights as against appellant. It is
argued that, before any injunction was is-
sued, the court should have determined
appellant's rights as against the parties di-
verting from-streams leading to the under-
ground basin. The issue, however, was
not clearly raised in the pleadings, and
there was not sufficient evidence in the
record to enable the court to make a de-
termination as to the priority of rights
or as to the effect of these diversions upon
the safe yield in the basin. In view of the
necessity of securing a present solution
for the critical situation in the basin area,
the court was justified in leaving open for
future determination the rights of appel-
lant as against al! such diversioners, some
of whom were not made parties to the ac-
tion.
The court reserved jurisdiction, among
other things, to review its determination
of the safe yield of the Raymond Basin
Area and the rights of all the parties as
affected by the abandonment or forfeiture
Sof any right. The reservation specifies
that "in the event material change be
found or any such aban.io nment or for-
Sfeiture be esta:Lished" the court can "ad-
Sjudicate that the decreed right of each par-
,ty to pump or otherwise take water from
Sthe ground in the Raymcnd Basin Area
Shall be changed proportionately in the
i same manner as originally fixed herein.


34 Cal.









"* *" Review of the safe yield was
be had "not more frequently than at five
(5) year intervals." Appellant concedes
that the court would have power to retain
jurisdiction to readjust the rights of the
parties in accordance with the law and the
facts as they may be at the time, but it
asserts that the court went beyond its au-
thority and decreed as to rights which may
be attained in the future insofar as it re-
served jurisdiction to pass upon abandoned
or forfeited waters and provided that the
right of each party should be altered pro-
portionately in the event of any material
change or abandonment. The five year
limitation upon redetermination of the safe
yield is also challenged by appellant.

[42] The retention of jurisdiction to
meet future problems and changing con-
ditions is recognized as an appropriate
method of carrying out the policy of the
state to-utilize all water available. Allen
v. California Water & Telephone Co., 29
Cal2d 466, 488, 176 P.2d 8; City of Los
Angeles v. City of Glendale, 23 Cal.2d 68,
81, 142 P2d 289.

rP3] In the present case, the trial court
.luded that each party owned "by pre-
scription" its "present unadjusted right,"
that is, the amount which it had been ac-
tually pumping. The effect of the judg-
ment is to decree that, while the parties
have this present right, it is necessary,, in
order to conserve the basin and preserve
the -rights of all parties, to limit the tak-
ings to the amount of the safe yield and
therefore to-make a pro-tanto or propor-
tionate reduction in the amount which each
can be permitted to pump until such time as
conditions warrant an increase. -This solu-
tion of the problem recognizes that the
original owners have some rights to con-
tinue to -pump in the future, that at the
same time certain prescriptive rights have
ripened on the basis of appropriations made
after the overdraft commenced, and that
the rights of each of the parties are mea-
sured by the amounts of the respective
takings. Under such circumstances, it is
proper to provide that, if the amount of the
safe yield is increased, the permissible tak-
ings shall be increased proportionately up
to the amount of the "present unadjusted


Cal. 35


right" of each party. The adjudication
thus applies to existing rights, and there
is .no declaration as to future rights in
water -to which a party has no present
right. Accordingly, the action of the
court is not in conflict with the statement
in City of San Bernardino v. City of Riv-
erside, 186 Cal. 7, at pages 30-31, 198 P.
784, to the effect that a court should
not undertake to make a declaration as to
future rights.
We are of the opinion, however, that
the five year limitation upon the power to
review the determination of safe yield
tends to defeat the purpose of the rule giv-
ing the trial court continual supervisory
powers in water rights cases, and that the
judgment should be modified to preserve
a broad retention of jurisdiction in the
trial court to change its decree and orders,
after notice and hearing, as the occasion
may require. Paragraph XXI of the judg-
ment is, therefore, modified by striking
therefrom the following provision: "and
that the review of its determination of the
safe yield of either or both of said units
of the Raymond Basin Area shall be had
not more frequently than at five (5) year
intervals after the date hereof."
As so modified, the judgment is affirmed;
respondents to recover costs on appeal.

SHENK, EDMONDS, TRAYNOR, and
SPENCE, JJ., concur.

CARTER, Justice.
I dissent.
While the issues in this case are limited
to the rights of overlying land owners and
appropriators of underground percolating
waters, the majority opinion purports to
cover a much wider range in its pronounce-
ments in the field of water law. Any
student in this branch of our law must be
impressed with the hodge-podge of conflict-
ing rules and principles enunciated in the
various decisions of this Court and the Dis-
trict Courts of Appeal, particularly during
the past two or three decades, and the
majority opinion in this case simply adds to
the confused state of affairs. Having had
a somewhat limited experience in the trial
of cases involving principles of water law,


CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


~t~llp~+~O~~Fr~a~~~a~-9r~-lru.-n? ...3'~rCCr~~L-. ~--~-;I~;~ ;`~.~l~t~lF~EW~*R.P~P~'.~~~c~d~PC~~








207 PACIFIC IREP'OiTER, 2d SEi.IES


I have had the urge for some time to pre-
pare a symposium of the decisions of our
courts in recent years, which, to my mind,
leaves this branch of our law in a state of
hopeless confusion. However, I do not
consider this case a proper vehicle in which
to undertake this work and. I shall await
a more propitious occasion.
In view of the limited issues here in-
volved, all discussion relating to water
rights in surface streams and lakes have no
relevancy to the problems here involved.
At the.beginning of the majority opinion,
the issues here presented are correctly stat-
ed as follows: "The principal issues pre-
sented on this appeal are whether the trial
court properly limited the amount of water
that appellant may take from the ground in
the Raymond Basin Area, and whether, it
erred in placing the burden of curtailing
the overdraft proportionately on all par-
ties." Then follows a discussion of "Pre-
liminary Contentions" relative to dismissal
of the action and reference to the Division
of Water Resources. I am disposed to
agree that if the case were properly re-
.ferred to the Division, appellant was not
entitled to.have the case dismissed. How-
ever, if this were a case of first impression,
I would be disposed.to agree with'the ap-
pellant's contention that the scope and'
effect of the reference here made was a
violation of the judicial process. But it is
apparent from the recent decisions of this
Court that virtual abdication of the judicial
process of the courts in favor of the ad-
ministrative process of the Division has
not only been sanctioned, but has been im-
posed by this Court upon the trial courts
in cases of this character. Of the wisdom
of such imposition I'have grave doubt. I
can see no objection, however, to a trial
court availing itself of the investigating
facilities of the Division and making use
of the data thus obtained in the solution of
problems of this character, but I am un-
qualifiedly opposed to the view expressed
in some of the decisions of this Court rela-
tive to the infallibility of the Division, and
the necessity that trial courts refer every
case involving problems relating to water
rights to the Division and accept its de-
termination of all questions of both fact and
law. I am convinced from an examination


of the record in this case that that is just
what the trial court did in determi:ning the
rights of the parties to this action. It is
obvious that principles of water law were
disregarded, that the Division ma e a dter-
mination based upon the quantity of v.- wter
available and the requirements of t'he re-
spective parties, and divided the w:.atcr
accord ngly, regardkcss of prior appropria-
tions, prescriptive rights, or rights of
overlying owners. They accomplish this
unique result by evolving a new a::d novel
theory of each user acquiring a ri'ht
against the other by prescription or adverse
use, thus destroying all priorities and
placing each user upon an equal footing
with the other, regardless of the time of
origin or bases of his right. This is cer-
tainly a "new look" in the field of water
law. \We have indeed come a long way
from the rugged individualism of the
riparian right "rocking chair" doctrine as
exIpouided in Lux v. Haggin, 69 Cal. 255, 4
P. 919, 10 P. 674; Alta Land & Water Co.
v. Hancock, 85 Cal. 219, 24 P. 645, 20 Am.
St.Rep. 217; Southern California Inv. Co.
v. Wilshire, 144 Cal. 68, 77 P. 767; Mionte-
cito Valley Water Co. v. Santa Barbara,
144 Cal. 578, 77 P. 1113; Anaheim Union
Water Co. v. Fuller, 150 Cal. 327, 83 P. 978,
11 L.R.A.,N.S., 1062; IIfiner v. Sawday,
153 Cal: 86, 94 P. 424; San Joaquin. &
Kings River Canal and Irr. Co. v. Fresno
Flume & Irr. Co., 158 Cal. 626, 112 P. 182,
35 L.R.A., N.S., 832; Miller & Lux Inc., v.
J. G.' James Co., 179 Cal. 689, 178 P. 716:
Oliver v. Robnett, 190 Cal. 51, 210 P. 408;
Pabst v. Finmand, 190 Cal. 124, 211 P. 11;
i-Herminghaus v. Southern California Edi-
son Co., 200 Cal. 81, 252 P. 607; Fall River
Valley Irrigation Dist. v. Mt. Shasta Powver
Corp., 202 Cal. 56, 259 P. 444, 56 A.L.R.
264; Miller & Lux Inc., v. Enterprise Canal
& Land Co., 169 Cal. 415, 147 P. 567; Mor-
gan v. Walker, 217 Cai. 607, 20 P.2d 660:
,Ioore v. California Oregon Powver Co., 22
Cal.2d 725, 140 P.2d 79S.; Skelly v. Cowell
37 Cal.App. 215, 173 P. 609; Stepp v. Wil-
liams, 52 Cal.App. 237, 198 P. 661; Mr.
Shasta Power Corp. v. McArthur, 109 Cal.
App. 171, 292 P. 5419; California Pastoral
& Agricultural Co. v. Enterprise Canal &
Land Co., C.C., 127 F. 741, and other cases:
and the doctrine of prior appropriation, a;.


36 Cal.







CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


,expounded in Osgood v. El Dorado Water
& Deep Gravel Min. Co., 56 Cal. 571; Bur-
rows v. Burrows, 82 Cal. 564, 23 P. 146; De
Necochea v. Curtis, 80 Cal. 397, 20 P. 563,
22 P. 198; Duckworth v. Watsonville Wa-
ter & Light Co., 158 Cal. 206, 110 P. 927;
Haight v. Costanch, 184 Cal. 426, 194 P. 26;
Joerger v. Pacific Gas & Electric Co., 207
Cal. 8, 276 P. 1017; Jennison v. Kirk, 98
U.S. 453, 25 L.Ed. 240; Telluride Power
Transmission Co. v. Rio Grande WR Co.,
175 U.S. 639, 20 S.Ct. 245, 44 L.Ed. 305;
and also the doctrine of prescriptive rights,
as expounded in Alta Land & Water Co., v.
Hancock, 85 Cal. 219, 24 P. 645, 20 Am.St.
Rep. 217; Southern California Inv. Co. v.
Wilshire, 144 Cal. 68, 77 P. 767; Anaheim
Union Water Co. v. Fuller, 150 Cal. 327,
88 P. 978, 11 L.R.A.,N.S:, 1062; Oliver -v.
Robtiett, 190 Cal. 51, 210 P. 408; Pabst v.
Finmand; 190 Cal. 124, 211 P. 11; Morgan
Sv. Walker, 217 Cal. 607, 20 P.2d 660; Moore
v. California-Oregon Power Co., 22 Cal.2d
725, 140 P.2d 798; Skelly v. Cowell, 37 Cal.
App. 215, 173 P. 609; Stepp v. Williams, 52
Cal.App. 237, i98 P. 661; 'Mt. Shasta Power
Corp. v.'McArthur, 109 Cal.App. 171; 292
P. 549.' If itmay be said that the doctrine
e those cases was based upon a-philosophy.
f "'rugged individualism",-I would say-that'
the doctrine laid down in the majority opin-
ion in the case at bar is based upon the phil-
osophy of.bureaucratic communism. Under
this latter -doctrine, long, -established, and
what was thought to be, a prior, vested right,
to divert and use a given quantity of water-
is n6tonily placed upon a-parity with later
acquired rights, but an administrative
agency of the state steps in and administers
the distribution of such water at the ex-
pense of 'the users. This may not be the
type of obnoxious stateism which exists in
many other countries, but it is certainly a
very definite step in that direction. As one
who believes in the concept embraced with-
in both the federal and state constitutions
that an owner of private property has the
right to exercise ownership and control over
it and make such use of it as he may see fit
so long as he causes no injury to others
thereby, I am opposed to state supervision
and control of privately owned water rights,
as well as other privately owned property.
I know of no reason, and none has been


suggested, why parties engaged in water
litigation may not prepare and present evi-
dence in support of their rights with as
much probative value as that obtained by
the Division of Water Resources.
The record discloses that in 1911, appel-
lant purchased 171 acres immediately north
of Raymond Fault. Appellant retains only
a few parcels (about 10%) of the original
171 acres. In every conveyance made, ap-
pellant reserved all water rights. One-
fourth of appellant's production has been
used for beneficial uses on the 171 acres
of overlying land in Raymond Basin area
and.three-fourths has been exported for
use outside of this area on non-overlying
lands. By the end of the 1918-19 season,
appellant's minimum annual extractions,
extending over a period of five consecutive
years, amounted to 370 acre feet of water.
Before that, its production was 337 acre
feet. Three-fourths of its maintained ex-
traction, or 284.25 acre feet, represent pre-
scriptive rights; .that is, water. diverted
from the Basin and used on non-overlying
lands. The remainder of the water pro-
duced was used on its overlying lands -in
th'eBasiii. During'the 1923-24 season, ap-
pe lant produced on its lands 403 acre feet
aid exported three-fourths of this quantity.'
Between the last mentioned season and the
1928-29 season, appellant produced 521 acre'
feet per annum, of which 118 acre feet was
new production which had matured since
1919. Of this new production, 29.50 acre
feet was used on overlying lands and 88.50
acre feet represent a new prescriptive right'
acquired during this period. Appellant
claims, and the evidence appears to sustain
its position, that by the 1933-34 season, it
had acquired a prescriptive -right to divert
and use from its lands overlying Raymond
Basin 390.75 acre feet, and 130.25 acre feet
for overlying uses on said land, or a total-
of 521 acre feet per annum. Appellant's
production from said land since the filing
of the complaint is as follows: 1938-
613.12 acre feet; 1939-618.73 acre feet;'
1940-626.06 acre feet; 1941-578.88'acre
feet; 1942-701.30 acre feet; 1943-866.60
acre feet. By the decree in this action,
appellant's production from said land for
all purposes was determined to be 521 acre
feet per annum which quantity was classi-


Cal. 37


BS~r--r ---- e Ir I ~-- ---- ---'








207 PACIFIC REPORTER, 2d SERIES


fled as appellant's unadjusted right. The
decree, however, limited appellant's total
diversion to 359 acre feet per annum for all
purposes. In arriving at the foregoing con-
clusion, the trial court determined as a
matter of law that all of the rights of the
parties are of equal priority and of the same
legal force and effect; that each of the
'parties had acquired a prescriptive right
against the other for the quantity of water
which the court determined that each of
said parties was entitled to divert and use,
and no distinction was made between the
rights of overlying owners and rights
acquired by appropriation or prescription.
I am disposed to agree with counsel
for appellant that "One would search the
books a long, long time before any law
could be found that overlying owners'
rights can be put into a hopper and come
out appropriative or prescriptive rights,
or that appropriative or prescriptive rights
are co-equal with overlying owners'
rights." I am sure that no cases can be
found, even in the confused and muddled
state of our water law which gives sup-
port to such an absurd pronouncement.
In California, one may acquire rights in
underground water by appropriation or
prescription. Such right, when establish-
ed, is paramount to that of the overlying
owner. Burr v. Maclay Rancho Water
Co., 154 Cal. 428, 98 P. 260; Katz v.
Walkinshaw, 141 Cal. 116, 70 P. 663, 74
P. 766, 64 L.R.A. 236, 99 Am.St.Rep. 35;
City of San Bernardino v. City of Riv-
erside, 186 Cal. 7, 198 P. 784; Peabody v.
City of Vallejo, 2 Cal.2d 351, 40 P.2d 486.
There are, in this case, two types of
water rights involved-those of the over-
lying owners, and those of the non-over-
lying owners. While I think the term
appropriatorr" is correctly used only with
respect to those persons who acquired wa-
ter rights prior to the time the lands of
other overlying owners were granted by
the United States Government, in the in-
terest of promoting an understanding of
this dissent, in conjunction with the ma-
jority opinion, I shall use the term as
meaning a non-overlying owner-in other
words, one who has acquired water rights
for use other than on land overlying the
underground water supply.


Inherent in the opinion as set forth in
Katz v. W"alknshaw, 141 Cal. 116, 70 P.
663, 74 P. 766, 64 L.R.A. 236, 99 Am.St.
Rep. 35, is the doctrine of correlative
rights. It appears that this doctrine seeks
to assimilate the law of streams-the anal-
ogy of riparian rights-to that of under-
ground waters when used on overlying
lands; as to non-overlying use, the anal-
ogy of rights by appropriation is in opera-
tion.
In 1928 a new section, Sec. 3 of Art.
XIV, was added to our Constitution. This
section was designed to prevent waste of
the waters of our state, and was added in
the interests of the public welfare. The
section reads in part as follows: "The
right to water or to the use or flow of
water in or from any natural stream or
water course in this State is and shall be
limited to such water as shall be reason-
ably required for the beneficial use to be
served, and such right does not and shall
not extend to the waste or unreasonable
use or unreasonable method of use or un-
reasonable method of diversion of water.
Riparian rights in a stream or water
course attach to, but to no more than so
much of the flow thereof as may be re-
quired or used consistently with this sec-
tion, for the purposes for which such lands
are, or may be made adaptable, in view of
such reasonable and beneficial uses;
provided, however, that nothing herein
contained shall be construed as depriving
any riparian owner of the reasonable use
of water of the stream to which his land
is riparian under reasonable methods of
diversion and use, or of depriving any
appropriator of water to which he is law-
fully entitled. This section shall be self-
executing, and the Legislature may also
enact laws in the furtherance of the policy
in this section contained." [Emphasis
added.]
Evidently the first time the above quoted
constitutional provision was considered by
this Court was in the case of Gin S. Chow
v. City of Santa Barbara, 217 Cal. 673,
22 P.2d 5. That case involved the Santa
Barbara River, and decided that stream
waters not being put to a beneficial use by
a riparian owner could be appropriated,
and the old law of vested riparian rights


38 CaL







CITY OF PASADENA v.
Cite as 20
was supposedly overruled and obliterated
by the 1928 Constitutional Amendment.
^,In the light of certain language contained
in said Amendment, such a construction
appears to me to be unwarranted. Those
words are these: "Riparian rights in a
stream or water course attach to, but to
no more than so much of the flow there-
of as may be required or used consistently
with this section, for the purposes for
which such lands are, or my be made
adaptable, in view of such reasonable and
beneficial uses; provided, how-
ever, that nothing herein contained shall
be construed as depriving any riparian
owner of the reasonable use of water of
the stream to which his land is riparian
under reasonable methods of diversion
and use, or of depriving any appropriator
of water to which he is lawfully entitled."
There is nothing in the above quoted
constitutional provision which should be
construed as preventing an appropriator
from acquiring a prescriptive right to the
water he has used beneficially for the pre-
scriptive period. If the appropriator is
using water which the riparian may need
in the future to irrigate his land, then
the riparian should be required to ask for
a declaratory judgment in order that such
'water may be available to him when he
does need it. This would prevent waste,
and would be in line with the language
contained in the constitutional amendment.
It would also have the added advantage of
letting the appropriator know where he
stands and what he may expect. Under
the present rule, an appropriator may use
water, incur obligations, etc., and then,
later, when the riparian owner desires to
use water, have his rights taken from him.
Such a state of affairs would bring on
far more chaos than the "old rocking
chair" doctrine was capable of doing.
The majority purport to expound rules
relative to surplus or excess water, but ad-
mittedly there is no water answering such
a classification in this case. The major-
ity opinion states: "Prescriptive rights are
not acquired by the taking of surplus or
excess water, since no injunction may is-
sue against the taking and the appropriator
may take the surplus without giving com-
pensation *." What the majority


CITY OF ALHAMBRA Ca]. 39
7 r.2d 17
mean by the phrase "surplus or excess
water" is not clear. If it is meant that so
long as there is water available for those
who desire to use it, any additional water
is "surplus or excess water", then the
above pronouncement is directly contrary
to the following cases: Butte Canal &
Ditch Co. v. Vaughn, 11 Cal. 143, 70 Am.
Dec. 769; Ortman v. Dixon, 13 Cal. 33;
Kidd v. Laird, 15 Cal. 161, 76 Am.Dec.
472; Stein Canal Co. v. Kern Island Irr.
Canal Co., 53 Cal. 563; Lux v. Haggin,
69 Cal. 255, 4 P. 919, 10 P. 674; Alta Land
& Water Co. v. Hancock, 85 Cal. 219, 24
P. 645, 20 Am.St.Rep. 217; Southern Cal-
ifornia Inv. Co. v. Wilshire, 144 Cal. 68,
77 P. 767; Montecito Valley Water Co.
v. Santa Barbara, 144 Cal. 578, 77 P. 1113;
Anaheim Union Water Co. v. Fuller, 150
Cal. 327, 88 P. 978, 11 L.R.A.,N.S., 1062;
Duckworth v. Watsonville Water & Light
Co., 150 Cal. 520, 89 P. 338; Wutchumna
Water Co. v. Pogue, 151 Cal. 105, 90 P.
362; Huffner v. Sawday, 153 Cal. 86, 94
P. 424; Miller v. Bay Cities Water Co.,
157 Cal. 256, 107 P. 115, 27 L.R.A.,N.S.,
772; Walnut Irrigation Dist. v. Burke,
158 Cal. 165, 110 P. 517; San Joaquin &
Kings River Canal and Irr. Co. v. Fresno
Flume & Irr. Co., 158 Cal. 626, 112 P.
182, 35 L.R.A.,N.S., 832; Miller & Lux
Inc., v. Enterprise Canal & Land Co., 169
Cal. 415, 147 P. 567; Miller & Lux Inc.,
v. J. G. James Co., 179 Cal. 689, 178 P.
716; City of San Bernardino v. City of
Riverside, 186 Cal. 7, 198 P. 784; Antioch
v. Williams Irr. Dist., 188 Cal. 451, 205
P. 688; Oliver v. Robnett, 190 Cal. 51, 210
P. 408; Pabst v. Finmand, 190 Cal. 124,
211 P. 11; Herminghaus v. Southern
California Edison Co., 200 Cal. 81, 252
P. 607, Fall River Valley Irrigation Dist.
v. Mt. Shasta Power Corp., 202 Cal. 56,
259 P. 444, 56 A.L.R. 264; Joerger v. Paci-
fic Gas & Electric Co., 207 Cal. 8, 276 P.
1017; Morgan v. Walker, 217 Cal. 607,
20 P.2d 660; Miller & Lux Inc., v. Tulare
Lake Basin Water Storage Dist., 219 Cal.
41, 25 P.2d 451; Peabody v. City of Val-
lejo, 2 Cal.2d 351, 40 P.2d 486; Tulare
Irr. Dist. v. Lindsay-Strathmore Irr. Dist.,
3 Cal.2d 489, 45 P.2d 972; Meridian, Ltd.
v. San Francisco, 13 Cal.2d 424, 90 P.2d
537, 91 P.2d 105; Moore v. California








207 PACIFIC REPORTER, 2d SERIES


Oregon Power Co., 22 Cal.2d 725, 140 P.
2d 798; Skelly v. Cowell, 37 Cal.App.
215, 173 P. 609; Stepp v. Williams, 52
Cal.App. 237, 198 P. 661; Mt. Shasta
Power Corp. v. McArthur, 109 Cal.App.
171, 292 P. 549; California Pastoral &
Agricultural Co. v. Enterprise Canal &
Land Co., C.C., 127 F. 741. This Court
has never stated forthrightly that the
above cases are overruled. There are ex-
pressions in some decisions to the effect
that the doctrine of those cases is out of
harmony with the concept embraced in the
1928 Constitutional Amendment, but the
confusion resulting from such interpreta-
tion of this Amendment was probably not
envisioned by the members of this Court
who participated in the decisions in which
this Amendment was interpreted. Under
this interpretation, one who diverts water
for a non-riparian use can never acquire
a right to the water diverted and benefi-
cially used by him as against a riparian
owner who does not see fit to use his share
of the water of a stream to which his
land is. riparian. This means that many
of -the most valuable water rights in this
state could not now be acquired. For ex-
ample, A diverts water from a stream
for a non-riparian use for the prescriptive
period. During all this period there is
water flowing past the lands of the ripari-
an owners down stream who are not cul-
tivating their land, and, therefore, have
no present need for water. But after A
has fully developed his non-riparian land
by the use of water from the stream for
the prescriptive period, the downstream
riparian owners decide to develop their
lands and need the water. Under the
doctrine of the Gin Chow and Peabody
cases, the downstream riparian owners
are entitled to all of the water if they need
it to the exclusion and detriment of the
non-riparian owner who has made a bene-
ficial use of it for the prescriptive per-
iod. This was not the law before these
decisions.
I am convinced that the doctrine of Lux
v. Haggin, supra, did not establish a wise
policy for the development of the water re-
sources of California, and had I been a
member of this Court when that case. was
decided, I would have joined with the dis-


centers. However, there were many salu-
tary principles of water law which were
engrafted onto that doctrine, under which
valuable rights were established, and those
principles should not be swept away -by a
stroke of the pen because the majority of
this Court believe that the 1928 Constitu-
tional Amendment has modified the ripar-
ian right doctrine by limiting the right to
the quantity of water reasonably neces-
sary for the beneficial use of the: riparian
owner. This modification should not oper-
ate to prevent a non-riparian owner from
acquiring the same character of right he
could have acquired under the superseded
doctrine. I take the position, therefore,
that a prescriptive right may be acquired to
so-called "surplus or excess water" and
that a holding to the contrary fails to rec-
ognize fundamental and well settled prin-
ciples of water law which were. not abro-
gated by the 1928. Constitutional Amend-
ment.
In this case we: have overlying owners
who are analogous to the riparian owners,
and we have many.different appropriators.
These different persons have all been using
the water for their various purposes for. a
great many years-far more years than: is
legally necessary to acquire a presciiptive
right against any one. The majority say
they have been using adversely to each
other, and have acquired prescriptive rights
against each other. This is a statement
with which I am not in accord. In order
that one may gain a prescriptive right there
must be an adverse user for the prescribed
period of five years under such. circum-
stances -that the person against whom the
use is adverse has knowledge, either actual
or constructive. The majority charge the
various appropriators with such knowledge
because the water level in the wells was
lowered. This is absurd. The level in
these wells was. due to the very nature of
the source of supply, subject to change.
The duration and severity of the winter
season, the length and intensity of the rainy
season, the humidity or lack of humidity
with its attendant lack of evaporation or
evaporation would all have an. effect on the
supply of water available in the wells. The
mere user of the water for the-prescriptive
period is not sutiicient of itself to confer


-~*-~Rl~arer~4aBsrr~aD4~r~~ ~


40 Cal.








CITY OF PASADENA v. CITY OF ALHAMBRA
Cite as 207 P.2d 17


prescriptive title; the use must be adverse.
Otherwise it can never ripen into a pre-
/"criptive title, no matter how long con-
tinued. And before a use can be adverse
in the sense of this rule, it must be an in-
vasion of the rights of the party against
whom it is set up, of such a character as
to afford him grounds of action; that is, it
is the fact that the claimant has been ex-
posed to an action which the opposite party
has neglected to bring, that is seized on as
the ground for presuming a grant in favor
of long continued possession and enjoy-
ment. The theory being that this adverse
state of things would nt have been sub-
mitted to if there 'had not been a grant.
A general principle which has been applied
is that a use of th'e water of a stream or
lake by a common proprietor, although ex-
cessive, is not to be regarded as adverse,
so as to ripen into a prescriptive right,
however long continued, so long as it is
the common use, and so long as other com-
mon owners are not injured thereby or pre-
vented or excluded from making such use
as, of common right belong to them. 56
Am.Jur., Waters, pp. 766-768.
In this case we have both overlying own-
ers and appropriators using the water, and
F-,pparently all the water any of them had
ad need for. Yet we are asked to believe
that each and every one of them has, in
some way, gained a prescriptive right
against each and every one of the others
because the water level in the wells has
been lowered. It appears from the report
of the Water Commission that the under-
ground supply has been withdrawn to a
greater extent than is consistent with water
conservation measures. It appears to me
that the only question involved is that of
priority in time of appropriation.
With respect to appropriators, the Civil
Code provides that one prior in time is
prior in right. Section 1414. This rule
seems to be agreed upon by the text writ-
ers and a great number of cases. To state
the general rule affirmatively, an appropri-
ator of water is entitled, as against all sub-
sequent claimants, to the exclusive use of
the water to the exent of his appropriation,
without diminution or material alteration in
quantity or quality. The residue after a
207 P.2d-3%


prior appropriation may be appropriated by
others out of the water of the same stream,
if there is no interference with the prior
appropriation. When a senior appropriator
does not need all or some portion of the wa-
ter, a junior appropriator may, at such
times, use such unused waters, although
the rights of the senior appropriators, when
fully exercised, consume the entire flow. -
It is the very essence of the doctrine of
prior appropriation that as between per-
sons claiming water by appropriation, he
has the best right who is first in time;
in other words, the prior appropriator is
entitled to it to the extent appropriated to
the exclusion of any subsequent appropri-
ator for the same or any other use. But
where both rights can be enjoyed without
interference with or material impairment
of each other, the enjoyment of both is al-
lowed. 56 Am.Jur., Waters, pp.- 758-9;
Weil, Water Rights in the Western States,
p. 307 et seq.; Wishon v. Globe Light &
Power Co., 158 Cal. 137, 110 P. 290; 'fu-
lare Irr: Dist. v. Lindsay-Strathmore Irr.
Dist., 3 Cal.2d 489, 45 P.2d 972; United
States v. 4.105 Acres of Land, D.C., 68
F.Supp. 279; State ex rel. Crowley v. Dis-
trict Court, 108 Mont. 89, 88 P.2d 23,-121
A.L.R. 1031, 1044; Farnham, Waters" and
Water Rights, 'p. 2089; :City of Lodi v.
East Bay Municipal Utility Dist., 7 Cal.2d
316, 60 P.2d 439; Larsen -v, Apollonio, 5
Cal2d 440, 55 P.2d 196; Meridian,.Ltd., v.
San Francisco, 13 Cal.2d 424, 90 P.2d 537,
91 P.2d 105.
As a solution to the problem, the major-
ity opinion affirms the trial court and in so
doing holds that the appropriators, includ-
ing appellant, shall have allocated among
them the water shortage. This is to be
done by a proportionate reduction of the
amount each appropriator has heretofore
been pumping. The majority cite no au-
thority for this proposition. It is submit-
ted that this is not, and should not be the
law. In times of natural or other deficien-
cy, also, unless otherwise provided by stat-
ute, the prior appropriator may still claim
his full amount; the loss must fall on the
later appropriators. Weil, Water Rights,
supra, page 311, and cases cited therein.
This follows naturally from the rule that


_ __ __~__I


Cal. 41








207 PACIFIC REPORTER, 2d SERIES


prior in time is prior in right, and this
rule is found in section 1414 of the Civil
Code.
In City of Lodi v. East Bay Municipal
Utility Dis., 7 Cal.2d 316, 341, 60 P.2d 439,
450, this Court said: "The city is a prior
appropriator, and as such cannot be com-
pelled to incur any material expense in
order to accommodate the subsequent ap-
propriator. Tulare Irr. Dist. v. Lindsay-
Strathmore Irr. Dist., supra, 3 Cal.2d 489,
at page 574, 45 P.2d 972. Although the
prior appropriator may be required to make
minor changes in its method of appropria-
tion in order to render available water for
subsequent appropriators, it cannot be com-
pelled to make major changes or to incur
substantial expense. Peabody v. City of
Vallejo, supra, 2 Cal.2d 351, at page 376,
40 P.2d 486." [Emphasis added.] It was
also said 7 Cal.2d at page 339, 60 P.2d at
page 449, "Under such circumstances the
1928 constitutional amendment, as applied
by this court in the cases cited, compels
the trial courts, before issuing a decree
entailing such waste of water, to ascertain
whether there exists a physical solution of
the problem presented that will avoid the
waste, and that will at the same time not
unreasonably and adversely affect the prior
appropriator's vested property right."
[Emphasis added.]
The majority of this Court, in holding
that the prior appropriator's rights should
be diminished proportionately with those of
subsequent appropriators, is, in so doing,
interfering with a vested property right,
and comes squarely within the limitation on
the police power of the state as set forth
in the Fourteenth Amendment to the Con-
stitution of the United States. The sub-
sequent appropriators are charged with
knowledge of the rights in the water ac-
quired at a time prior to the time their
rights were acquired, and it is they, rather
than those who were first in time, whose
rights should be subject to the exercise of
the police power in the interests of the pub-
lic in water conservation.
It is difficult to see how prescriptive
rights can be said to have been gained by
subsequent appropriators against prior ap-


propriators without a determination of the
extent of such rights. It seems that the
scattered operations conducted by respond-
ents should not have been lumped together
to constitute one prescriptive right, but that
there should have been a determination of
each prescriptive right, if any, that respond-
ent had acquired as against the appellant.
Appellant sought, by its demurrer to the
complaint, to have the court below require
respondent to plead the exact quantities and
locations of water rights which it claimed.
Its demurrer was overruled. It sought to
ascertain the same thing by a Demand for a
Bill of Particulars. The demand was de-
nied.
The right to water acquired by prescrip-
tion extends only to the quantity actually
taken at the time the right matured and
does not include the taking of an additional
quantity in the future. Burris v. People's
Ditch Co., 104 Cal. 248, 252, 37 P. 922;
North Fork Water Co., v. Edwards, 121
Cal. 662, 665, 54 P. 69; Southern California
Inv. Co. v. Wilshire, 144 Cal. 68, 72, 77 P.
767; Wutchumna Water Co., v. Ragle, 148
Cal. 759, 765, 84 P. 162; Pabst v. Finmand,
190 Cal. 124, 132, 211 P. 11; City of San
Bernardino v. City of Riverside, 186 Cal. 7,
25, 198 P. 784; Tulare Irr. Dist. v. Lindsay-
Strathmore Irr. Dist., 3 Cal.2d 489, 45 P.2d
972; Elliott v. Bertsch, 59 CaLApp2d 543,
547, 139 P.2d 332.
The majority opinion states that the trial
court concluded that each party owned "by
prescription" its "present unadjusted
right", that is, the amount which it had been
actually pumping. To reach this result is
to say that one may acquire a prescriptive
right merely by using the water. As I have
pointed out previously,,the use must be ad-
verse, and the persons against whom the
right is gained must have knowledge, either
actual or constructive. City of San Diego
v. Cuyamaca Water Co., 209 Cal. 105, 134,
287 P. 475. Adverse use of water involves
the invasion of the usufructuary right of
another in a water supply common to both.
Appropriative or prescriptive rights may be
invaded only by interference by another re-
sulting in actual diminution of the amount
of water covered by such right. Faulkner
v. Rondoni, 104 Cal. 140, 147, 37 P. 883; E.


- -- -------~111 ~---


42 Cal.







CITY OF PASADENA v
Cite as 21
,Clemens Horst Co. v. Tarr Mining Co., 174
:al. 430, 440, 163 P.. 492.
Conceding that a restriction of the water
supply was necessary, and assuming for the
purpose of argument only, that the rules as
to appropriation should not be applied, the
restriction should have been based upon the
elevations at appellant's wells rather than
limiting it to a specific number of acre feet
per year regardless of the status of the
water tables.
Professor C. F. Tolman, Professor of
Economic Geology at Stanford University,
the leading authority on ground water, in
his work "Ground Water" says: "It must
not be concluded that a considerable lower-
ing of the water table is serious or is detri-
mental to the water supply. Just as a sur-
face reservoir must be drawn down in order
to catch and preserve flood flow, so the sub-
surface-reservoir level (water table) must
be lowered sufficiently to prevent loss by ef-
fluent seepage. A decrease in the area of
effluent seepage increases the area of in-
fluent seepage (absorptive area) and in turn
increases the rate of ground-water re-
charge. A depleted reservoir at the end
/Qf the dry season or cycle of dry years
Necessary if the water is to be sal-
vaged in the following wet season or
cycle. In legal controversies an unreason-
able view has been taken in the past in
regard to the necessity of maintaining the
water table at the 'natural level'.". (page
469). And at page 487: "Many of the un-
derground reservoirs are so large that they
have capacity to carry over great quantities
of water not only from a wet season to the
following dry season but also from a period
of wet years to a period of dry years.
SHowever, to utilize these reservoirs fully it
is necessary to pump enough water out of
them to make room for all the inflow during
the wettest seasons and during the periods
of successive years of heavy precipitation.
This was well illustrated by some of the
underground reservoirs of Southern Cal-
ifornia, whose water tables, under heavy
pumping for irrigation, went down a little
lower each summer than they had risen in
the previous winter, until it appeared that
excessive depletion must inevitably compel
reduction in irrigation. Then came a per-
iod of wet winters when recharge occurred


CITY OF ALHAMBRA Cal. 43
07 P.2d 17
to a remarkable extent and the water levels
rose beyond all expectations."
The language used by this Court in City
of Lodi v. East Bay Municipal Utility Dist.,
7 Cal.2d 316, 344, 60 P.2d 439, 452, is applic-
able to the contention made by appellants:
"In our opinion the cause should be sent
back to the trial court to permit it to take
evidence as to the levels to which plain-
tiff's wells may be lowered without sub-
stantial danger to the city's water supply.
In fixing this danger level, an adequate
safety factor in favor of the city should be
allowed. There is no necessity for a retrial
of the case on the issues of fact as to which
the court has made extensive findings, as
above noted. The facts as thus found may
be considered in connection with the fur-
ther evidence taken to fix the danger level
of Lodi's wells. The decree should then be
reframed to provide that the duty rests
upon the District to maintain the levels of
the plaintiff's wells above the danger level
so fixed by the trial court; that in the event
the levels of the wells reach the danger
point, the duty be cast upon the District
to supply water to the city, or to raise the
levels of the wells above the danger mark;
and, if the District does not comply with
this order within a reasonable time, then
the injunction decree already framed, or
upon a proper showing as modified by the
court under its continuing jurisdiction,
shall go into effect. The trial court should
by its judgment preserve its continuing jur-
isdiction to change or modify its orders and
decree as occasion may require.
"Such a decree would adequately meet
the requirements of the Constitution by pre-
venting an unreasonable waste of the wa-
ters of the stream, and at the same time
would adequately protect the prior rights
of the City of Lodi. It would afford to the
city a continuance of its water supply, the
same, for all practical purposes, as if nat-
ural conditions were required to persist. If
its wells go down to the danger level, it
would immediately obtain water from the
District at the latter's expense, or the in-
junction decree by means of which the un-
derground levels will be artificially main-
tained would go into effect. It would ac-
cord to the District the right, and place
upon it the duty, of working out a physical


-- I --L~ -~3LIL~rPI


~tT)IRir~rlsOU4i~s~~~n*~pr~:Agyi~-i~







207 PACIFIC REPORTER, 2d SERIES


solution unhampered by a rigid decree
which, with changing conditions and rcw
methods of conservation constantly bc'ing
developed, may not only operate inequitably
but might actually encourage waste. It
would place upon the District the duty at its
expense to maintain the underground water
levels, and, if the District fails to do so, or
fails to supply water directly to the City of
Lodi, the decree provides for compulsory
releases so as to maintain natural condi-
tions. Such a decree would say to the Dis-
trict: You should maintain the water levels
so as not to cause substantial damage to the
city, and you may do this in any way best
suited to your needs, or, if you do not main-
tain those levels, you should supplement the
city's supply to the extent of the deficiency
caused by your operations by the furnishing
of water by artificial means and at your ex-
pense. If you do.not do these things, you
'are subject to an injunction compelling re-
leases to maintain natural conditions. Such
a decree would undoubtedly prevent a multi-
.plicity of suits. It would fix the rights of
the prior appropriator and would determine
the effect of the subsequent appropriator's
.diversions. Since there is no immediate
danger to the prior appropriator, it would
fix the danger levels of..the prior appropria-
tor's wells and when that level is reached,
upon a showing to.that effect, it would re-
quire the subsequent appropriator either by
direct delivery of water or by compulsory
releases to supply the prior appropriator's
needs.
"Such a. decree would permit the full use
.of all available waters, guarantee to the
prior appropriator full protection, and
would do this without unduly restraining
the operations of the subsequent appropria-
tor."
To accomplish the restriction by requir-
ing appellant to maintain a certain level in
its wells is a far more equitable solution
than that proposed by the majority. In the
first instance, during wet years he may,
.without court action, pump as much water
Sas he has need for; in dry years, he will
-know exactly where he stands and that he
may not go beyond the danger line. To
place the restriction on the water-level bas-
Sis will save time, money and expense.


The responder: seeks to answer appel-
lant's contention as to the water-Ievel basis
of restriction with the argis-iut tha: the
decree was responsive to tlhe pleadir.gs "in
that each claimed a certain amount of wa-
ter and not that certain wa:er levels should
be maintained. As the Western Unit here-
in considered is an underground reservoir,
the abstraction of an acre foot of wazer by
one party is to that extent detrimen:al to
the rights of every other party in the Unit."
Of course the parties claimed a certain
amount of water; appellant claimed, and
introduced evidence to support the claim,
that, in accordance with the law, a prior
appropriator had a prior right, but the de-
cree is certainly not consistent with that
claim.
In summary, the majority opinion seems
to hold that "surplus or excess water",
without defining it, may be appropriated,
but no prescriptive right may be acquired
thereto; that a subsequent appropriator
may acquire a prescriptive right against a
prior appropriator of percolating watei
even though the prior appropriator has con-
tinued to divert and use his full appropria-
tive right and has never been deprived of
any portion of the quantity of water so
appropriated by him; that an overlying
owner may acquire a prescriptive right
against another overlying owner who is
using water from the same underground
basin even though each has diverted and
used the full quantity of water he could
put to a beneficial use; that an overlying
owner may acquire a right by prescription
against a prior or subsequent appropriator
and that the latter may acquire such a right
against the former even though each has
diverted and used the full quantity of water
that he could reasonably put to beneficial
use. Obviously, the effect of this holding is
to place upon an equal footing users who
have diverted and used a given quan:ity of
water from an underground basin for a
continuous period of five years regardless
of the origin or period of time during .-hich
the diversions were made. This holding
does not find support in a single aur-ority
or decision of any court in any cominnc law
jurisdiction since court decisions have been
published. On the other hand, it is con-


1__)___1_1______


---~-~--~--IC----~--~r~ol~ ~^-~.`PY~;BFII~*


44 Cal.







CITY OF PASADENA v.
Cite as O2
rary to every decision which has ev;r been
rendered by the courts of this state and
every other jurisidction which has con-
sidered the subject. Viewed in relation to
the practical aspect of the case and the
physical situation which me.st exist in every
case of this character, the effect of this
holding is to overrule every decision whiich
has been rendered by this court in cases
where similar factual situations existed.
We must assume that, in a state of nature,
the underground basin here involved was
full of water in normal years of precipita-
tion and run-off; that is, the water would
be up to the top of the rim which confined
it to the basin area. If all users from such
a basin were overlying land owners, then
under the settled rules of law as announced
by this court, the rights of such users
would be equal and correlative, and no user
would have a prior or superior right to the
other. City of San Bernardino v. City of
Riverside, 186 Cal. 7, 198 P. 784; Burr v.
Maclay Rancho Water Co., 154 Cal. 428,
439, 98 P. 260; Katz v. Walkinshaw, 141
Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A.
236, 99 Am.St.Rep. 35. Then an appropri-
ftor comes into the picture. I mean by
appropriator", one who diverts and uses
water on non-overlying land. Obviously,
the same rule does not apply to him as to
an overlying owner because his use is clear-
ly adverse to the latter, unless there is sur-
plus or excess water .in the basin, and this
presents a most complex problem-one
which it may take years to solve. Its solu-
tion depends upon many factors, such as
topography, the area and depth of the basin,
the quantity and source of supply, the out-
flow, if any, the character of use by the
overlying owners, the type of crops raised,
and various other factors which may not be
immediately apparent. This Court has held,
and in my opinion correctly, that any ap-
propriation made subsequent to the vesting
of title in an overlying owner is adverse to
such overlying owner and gives rise to an
immediate cause of action on his behalf.
City of San Bernardino v. City of River-
side, 186 Cal. 7, 198 P. 784; Burr v. Ma-
clay Rancho Water Co., 154 Cal. 428, 439,
98 P. 260; Katz v. Walkinshaw, 141 Cal.
116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99
Am.St.Rep. 35; Miller v. Bay Cities Water


CITY OF ALHAMBRIA Cal. 45
SP.sd 17
Co., 157 Cal. 255, 107 P. 115, 27 L.R.A.,
X.S., 772; McClintock v. HI,,dson, 141 Cal.
275, 281, 74 P. 8-19; Cohcen v. La Canada
Land & Water Co., -12 Cal. 437, 76 P. 47;
-Muntec to Valley \VWater Co. v. Santa
*Barbara, 144 Cal. 578, 584, 77 P. 1113;
Verduigo Canon \Vaecr Co. v. Verdugo, 152
Cal. 655, 93 P. 1021; Hudson v. Dailey, 156
Cal. 617, 105 P. 748; because such use will
necessarily ripen into a right by prescrip-
tion against such overlying owner in five
evars. This is not true as between ap-
propri'tors, as the rule always has been,
as declared in section 1414 of the Civil
Code, that "As between appropriators, the
one first in time is the first in right." Wish-
on v. Globe Light & Power Co., 158 Cal.
137, 110 P. 290; City of San Bernardino v.
City of Riverside, 186 Cal. 7, 198 P. 784;
Meridian, Ltd. v. San Francisco, 13 Cal.2d
424, 90 P.2d 537, 91 P.2d 105; Sherwood v.
Wood, 38 Cal.App. 745, 177 P. 491; Jones
v. Pleasant Valley Canal Co., 44 Cal.App.
2d 798, 113 P.2d 289. Not only is the above
cited section of the Civil Code completely
abrogated and nullified, but all of the above
cited cases are, in effect, overruled by the
majority decision in this case.
The effect of the majority decision is tc
say to the overlying owners of land situ-
ated on an underground basin filled with
percolating waters, that: ''You have no
cause of action against an appropriator of
water for a non-overlying use unless you
can show that he is taking other than ex-
cess or surplus water, but if you do not
commence an action to restrain such diver-
sion, such an appropriator may obtain a
prescriptive right against you if it should
later be determined that he is taking water
to which you and other overlying land own-
ers may be entitled." Anyone who has the
slightest knowledge of situations of this
character should realize that this would
place an impossible burden upon. the over-
lying land owner and greatly jeopardize his
rights. His difficulty would be multiplied
if there were a number of overlying owners
taking water from the same basin. Ob-
viously, the overlying land owner should
have an immediate cause of action against
the appropriator, and the burden should be
on the latter to show that he is taking only
surplus or excess water or cease his diver-


-~ r5~-~-'s~ ~ .x' .,~p,..r ~ ~ ~ ~ wN.~.ve,,r,.







207 PACIFIC REPORTER, 2d SERIES


sicn. So far as subsequent appropriators
are concerned, the prior appropriator should
have the right to rely upon section 1414 of
the Civil Code and the above-cited au-
thorities which should vouchsafe to him a
prior and superior right based upon his
prior appropriation.
Since the decision of the trial court,
whichh is affirmed by the majority decision
of this court, is completely out of harmony
with every statute, principle and rule of 'law
which as heretofore been enacted and pro-
mulgated, I would reverse the judgment and
remand the cause for a new trial in ac-
cordance with what should be the settled
law of this state.

Rehearing denied; CARTER and
SCHAUER, JJ., dissenting.


O KEY NUMBER SYSTEM





CITY OF PASADENA v. CITY OF
ALHAMBRA et al.
L. A. 19186.

Supreme Court of California, in Bank.
June 3, 1949.

Rehearing Denied June 27, 1949.

Waters and water courses -=152(10)
Where municipality brought action to
determine ground water rights to Raymond
basin area and to enjoin overdraft court
could properly appoint division of water
resources, department of public works,
as referee and fix and allocate expenses of
reference among parties to the action.
-4--

Appeal from Superior Court, Los An-
geles County; Frank C. Collier, Judge.
Action by the city of Pasadena, a muni-
cipal corporation, against the city of Al-
hambra, a municipal corporation, the Cali-
fornia-Michigan Land and Water Com-
pany, a corporation, and others, to deter-
mine ground water rights within the Ray-
mond Basin area, and for other relief.


The division of water resources, depart-
ment of public works, state of California
was designated as referne. From two
orders fixing and allocating expenses of
the reference among parties to the action,
the California-Michigan Land and Water
Company, and others, appeal.
Orders affirmed.
For prior opinion, see 180 P.2d 699.
Goodspeed, McGuire, Harris & Pfaff,
Paul Vallee, Richard C. Goodspeed and
J. Donald McGuire, Los Angeles, for ap-
pellants.
A. E. Chandler, Special Counsel, San
Francisco, Harold P. Huls and H. Burton
Noble, City Attorneys Pasadena, C. C.
Carleton, Spencer Burroughs, Henry Hol-
singer, Sacramento, James C. Bone and
T. Guy Cornyn, City Attorneys Arcadia,
Gerald E. Kerrin, Robert E. Moore, Jr.,
Los Angeles, Hahn & Hahn, Edwin F.
Hahn, Pasadena, Potter & Potter, Bernard
Potter, Sr., Los Angeles, Merriam, Rine-
hart & Merriam, Ralph T. Merriam, Pas-
adena, Laurence B. Martin, Los Angeles,
Frederick G. Stoehr, Pasadena, Emmett
A. Tompkins, City Attorney Alhambra,
Kenneth K. Wright, Special Counsel, Los
Angeles, Paul F. Garber, City Attorney
Monrovia, Walter F. Dunn, Monrovia,
and Thomas Reynolds, City Attorney Los
Angeles Sierra Madre, Anderson & An-
derson, Trent G. Anderson, John C. Pack-
ard, Los Angeles, Bacigalupi, Elkus &
Sallinger, Claude Rosenberg, San Fran-
cisco, Derthick, Cusack & Ganahl, W. J.
Cussack, Los Angeles, Wilton W. Web-
ster, Pasadena, Dunn & Sturgeon, Walter
F. Dunn, Monrovia, Chandler & Wright,
Howard Wright, Bailie, Turner & Lake,
Norman A. Bailie, Los Angeles, Cruick-
shank, Brooke & Dunlap, Boyle & Holmes,
John W. Holmes, Pasadena, Frank P.
Doherty, Gibson, Dunn & Crutcher, Ira
C. Powers, Harold W. Kennedy, County
Counsel, S. V. O. Prichard, Assistant Coun-
ty Counsel, Los Angeles, for respondents.
Martin J. Weil, Win. J. De Martini, J.
A. McNair, J. Arthur Tucker, Los An-
geles, W. F. Kiessig, San Francisco, lHarri-
son Guio, L. A. Gibbons, Jerry H. Powell,
Douglas C. Gregg, Lawler, Felix & Iall,
Los Angeles, and Pillsbury, Madison &


46 Cal.




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