Title: City of Los Angeles, a municipal corporation, Plaintiff and Appellant, v. City of San Fernando, et al., Defendants and Respondents Civ 33708
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Title: City of Los Angeles, a municipal corporation, Plaintiff and Appellant, v. City of San Fernando, et al., Defendants and Respondents Civ 33708
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - City of Los Angeles, a municipal corporation, Plaintiff and Appellant, v. City of San Fernando, et al., Defendants and Respondents Civ 33708
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 5
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Full Text

CITY OF LOS ANGELES v. CITY OF SAN FERNANDO 7
30 al.APP.3d 176 Cite an, App., 105 Ca.ltptr. 77
Althollgh an investigation cannot be in-
,anta.ieo1tsly accomplished, neither can it The CITY OF LOS ANGELES, a municipal
prolonged indefinitely. However, corporation, Plaintiff and Appellant,
Kight's investigation was not unduly ex- v.
t,.ndcd, particularly in light of the hazard CITY OF SAN FERNANDO, et al., Defend-
,, air hijacking, which underlay it. As ants and Respondents.
,.,tcd in People v. Botos, supra, 27 Cal. Clv. 33708.
ap.d at 778, 104 Cal.Rptr. at 195: "It is o Appeal, Second District,
PP 'Court of Appeal, Second District,
necessary to document the alarming in- Division 2.
?rase in aircraft piracies over the last few Nov. 22, 1972.
aIrs. The dangers presented to innocent
S.tanders by these crimes are apparent. Rehearing Denied Dec. 13, 1972.
S. omitted.] When these obvious dan- Hearing Granted March 1. 1973.
,s are combined with the inherent diffi- Action by city of Los Angeles against
'ty of preventing hijackings, an individ- more than 200 defendants, including cities
,I's expectation of privacy from question- of Glendale, Burbank and San Fernando
or search when boarding an aircraft to quiet title to native and imported for
u ld not be as high as in other public eign waters in the upper Los Angeles river
i eC [citation]." ae. e Sunerior Court. Los Angele
ae.Te ueroiore Court. Los Angeles


Knight pursued defendant in order again
check his boot. When defendant ap-
.rled about to run away, Knight was not
:casonable in taking him to an office
,--re his investigation could be continued
. publicly and with more security for
cht. Such continuing investigation was
diede; it lay within the scope of its
S;ns. If defendant's boot contained no
';on, Knight's suspicion that he was an
'cr.ded air pirate would have been dis-
*- 'id.
As it turned out, defendant's boot con-
e d contraband, possession of which is a
;ny. For this public offense committed
'.s presence, Knight was authorized, as a
: .ate person, to arrest defendant.

8] Knight's reasonable cause to in-
gate the possibility that appellant was
ing a concealed and dangerous weapon
', not taken away from him by the fact
-r.dant left the boarding line. Under
circumstances, Knight's continued in-
cation until he was satisfied was law-


The order (judgment) is affirmed.

I FERSON, Acting P. J., and KINGS-
'Y. J., concur.


County, Edmund M. Moor, J., entered
judgment adverse to the city of Los Ange-
les and it appealed. The Court of Appeal,
Compton, J., held that city of Los Angeles
has prior and paramount right to all native
waters in the upper Los Angeles river
area, including captured flood waters as
well as all water imported into the area by
Los Angeles through the Owens river aque-
duct and from other sources, together
with water from all of the sources which
percolates into the underground storage
and has the further right to use all of the
underground basins in the area for storage
of native and imported water.
Reversed and remanded with direc-
tions.



1. Waters and Water Courses =42, 143
No one has right to extract from natu-
ral stream or watercourse more water than
is reasonably necessary for the beneficial
use to be served. West's Ann.Const. art.
14, 3.

2. Waters and Water Courses e=85
The existence of surplus water in a
river precludes the issuance of an injunc-
tion in favor of riparian owner to prevent


;5~5~5~5~5~5~ 1


t
s


-







R8 105 CALIFORNIA REPORTER


the extraction of such surplus. West's
Ann.Const. art. 14, 3.
3. Courts C93(1)
Where Supreme Court had expressly
found that city of Los Angeles, as succes-
sor to the Pueblo of Los Angeles, had
right superior to that of riparian or an ap-
propriator to satisfy its needs from the wa-
ters of the Los Angeles river and that the
"pueblo right" was a rule of property, the
superior court was bound by that rule and
it was error for it to conclude that the city
of Los Angeles did not possess such
"pueblo right." West's Ann.Const. art. 14,
3.
4. Courts <93(I)
Rule that courts exercising inferior ju-
risdiction must accept the law declared by
courts of superior jurisdiction applies with
particular force to questions of law con-
cerning property rights.
5. Courts <=93(1)
Where judicial decisions have become
established as rules of property, it is'the
duty of the court, on the principle of stare
decisis, to adhere to such decisions without
regard to how it might be inclined to de-
cide if question were new.
6. Waters and Water Courses e=197
Whether underground storage area
consisted of four separate basins or was
considered as one water field, previous
judgment which quieted city of Los Ange-
les' title to the use of the water in the up-
per Los Angeles river area covered each of
the four basins. West's Ann.Const. art. 14,
3.
7. Waters and Water Courses e9190
Even if the upper Los Angeles river
area consisted of four separate basins, the
water trapped in them did not constitute
"source of supply" separate from the
"pueblo right" of the city of Los Angeles.
West's Ann.Const. art. 14, 3.
8. Waters and Water Courses =105
One entitled to surface flow can pre-
vent the pumping of underground "support
water" which diminishes that flow. West's
Ann.Const. art. 14, 3.


9. Waters and Water Courses Co105
Rule that one entitled to surface fl,,
.can prevent pumping of underground ,',,
port water" which diminishes that flow .
plies even though the underground \,,
supporting surface flow is held in nat::,
basin from which the support water c,
not itself escape by underground fl,,
West's Ann.Const. art. 14, 3.
10. Waters and Water Courses Q=190
The "pueblo right" of the city of I,
Angeles includes ground water undcrl:,-
all portions of the upper Los Angeles rij,
area except that resulting from the impi.
station of water by the cities of San F.,
nando, Glendale and Burbank which h,
percolated into and become part of the st;
ply. West's Ann.Const. art. 14, 3.
II. Waters and Water Courses 3=-190
The city of Los Angeles has the rig.,.
to use the underground basin of the upp..
Los Angeles river area to store and trarn.
port its imported water and to recapture :
imported water for use either within .-
without the limits of the original puebl.
West's Ann.Const. art. 14, 3.
12. Waters and Water Courses J=105
The exclusive right to use under
ground basin as natural reservoir must ir
clude the right to lower the water level :
years of relative drought in order to pro
vide capacity to capture excess water r-
years of above average supply. West',
Ann.Const. art. 14, 3.
13. Waters and Water Courses e-=190
Pueblo right of city of Los Angelck
and its clear title to the imported Ower,
river water, gave it priority of legal clai-
to the underground water in the upper Io-
Angeles river area and the lack of advery
claim by cities of San Fernando, Glenda;!
and Burbank precluded those cities fror
acquiring prescriptive rights to the grout2
water of the upper Los Angeles river are,
West's Ann.Const. art. 14, 3.

14. Easements =-6
In absence of actual notice to th
record owner, establishing a prescripti,
right requires that the taking be so opt-


I a





CITY OF LOS ANGELES v. CITY OF SAN FERNANDO
Cite am, Aipi., 105 Cil.Htll r. 77


.. notorious that prudent owner can be
,,uimeId to realized not only the fact of
# taking but that such taking was ad-
,/~ie to his interest.
,. Easements :=5
\ctaal or constructive notice that the
,. ,Nlants are taking under claim of right
,, ",cssary in order to establish a pre-
,. i,,'ve right.
aS waters and Water Courses =190
With respect to pueblo-right water be-
*,!. to the city of Los Angeles, the ex-
.: of that right would suffice to pre-
., cities of San Fernando, Glendale and
.f'iak from gaining prescriptive rights
I'pueblo-right water so long as Los
I.,-'s was taking all the water it needed.
,.' Ann.Const. art. 14, 3.
i: Eminent Domain e=279(2)
I'nder rules that intervening public
n Limits remedy of owner of water right
,Irr:ages, that acquisition by municipali-
o water right for which owner of right
-,ocrs only damages is an "inverse con-
*i .-ution," and that ordinarily property
,,~ng!Ig to one municipality cannot be
.!< mned for benefit of another, cities of
,:indalc and Burbank could not rely on
..*r taking of waters to which city of Los
\, ilcs had prior right establishing "inter-
;:g public use." West's Ann.Civ.Code,
Si i,7; West's Ann.Code Civ.Proc. 1240,
, ,!l. 3.
See publication Words and Phrases
ufr other judicial constructions and
definitions.
IL Statutes 0223.2
Statutes dealing with the same subject
Are. if possible, to be construed so as to
'Armonize them.
it. Waters and Water Courses =>130, 190
Neither a private party nor another
*.vy may acquire prescriptive title to water
, :nrd by a city. West's Ann.Civ.Code,
:#7; West's Ann.Code Civ.Proc. 1240,
ut- 3.
a Waters and Water Courses =190
City of Los Angeles has prior and
C- amount right to all native waters in the


upper Los Angeles river area, including
captured flood waters as well as all water
imported into the area by Los Angeles
through the Owens river aqueduct and
from other sources, together with water
from all of the sources which percolates
into the underground storage and has the
further right to use all of the underground
basins in the area for storage of native
and imported water. West's Ann.Const.
art. 14, 3.
21. Waters and Water Courses <197
Where city of Los Angeles had prior
and paramount right to all native waters in
the upper Los Angeles river area, includ-
ing captured flood waters and certain im-
ported waters, Los Angeles was entitled to
an injunction against cities of Glendale,
Burbank and San Fernando to prevent
their further pumping of any of those wa-
ters belonging to Los Angeles. West's
Ann.Const. art. 14, 3.
22. Waters and Water Courses @<143
One who imports water and uses natu-
ral stream to convey it may recapture
equal amount in spite of its having been
mingled with natural waters of the stream.
West's Ann.Const. art. 14, 3.
23. Waters and Water Courses 8=190
The cities of San Fernando, Glendale
and Burbank were entitled to the recapture
from the upper Los Angeles river area of
return waters attributable to the cities'
purchase of metropolitan water district wa-
ter. West's Ann.Const. art. 14, 3.
24. Municipal Corporations I1040
City of Los Angeles, as prevailing par-
ty in action against cities of San Fernan-
do, Glendale and Burbank to quiet title to
water in the upper Los Angeles river area,
was entitled to recover ordinary costs.
West's Ann.Code Civ.Proc. 1032.

25. Municipal Corporations e@1040
Where city of Los Angeles objected to
order of reference to the state Water Re-
sources Control Board for determination
of certain questions pertaining to prescrip-
tive rights among cities and the only fac-
tual question which might have required


I~ a






105 CALIFORNIA REPORTER


reference was one for which the trial court
did not request an answer, to wit, the per-
centage of metropolitan water district wa-
ter imported by the cities which would be
expected to become return water, city of
Los Angeles would not be required to pay
any part of the cost of the original refer-
ence and, if trial court on remand should
find it necessary to make further refer-
ence, Los Angeles would be required to
pay only one-half of the reference cost.
West's Ann.Water Code, 2048.


Roger Arnebergh, City Atty., Gilmore
Tillman, Chief Asst. City Atty. for Water
and Power, Robert E. Moore, Jr., Ralph
Guy Wesson, Asst. City Attys., Gilbert W.
Lee, Deputy City Atty., George G. Grover,
Special Counsel, Corona, for plaintiff and
appellant.
Neville R. Lewis, City Atty., Lewis, Var-
ni & Ghirardelli, San Fernando, Special
Counsel, for defendant City of San Fer-
nando.
Joseph W. Rainville, City Atty., W. H.
Jennings, Paul D. Engstrand, Wallace R.
Peck, Jennings, Engstrand & Henrikson,
San Diego, for defendant City of Glendale.
Samuel Gorlick, City Atty., W. H. Jen-
nings, Paul D. Engstrand, Wallace R.
Peck, Jennings, Engstrand & Henrikson,
San Diego, for defendant City of Burbank.
Jennings, Engstrand & Henrikson, San
Diego, for defendant Joseph E. Amador
and others.
Henry Melby, Melby & Anderson, Glen-
dale, for defendant Aurora Carlson and
others.
Wm. Howard Nicholas, Nicholas, Kolli-
ner, Myers, D'Angelo & Givens, Los Ange-
les, for defendant William O. Bartholo-
maus, and others.
John H. Lauten, Gen. Counsel, Donald J.
Whitlock, Deputy Gen. Counsel, Victor E.
Gleason, Deputy Gen. Counsel, Los Ange-
les, amici curiae on behalf of MWD.

I. Thirty-one defendants were actively rep-
resented by counsel throughout and stipu-
lated judgments were filed by 17 others.


COMIl'T()N, Associate Justice.
This action was commenced in l93g,
the City of L.os Angeles against more th
200 defendants,' including the Cities
Glendale, Burbank and San Fernando, ,
were extracting water from wells in t
San Fernando Valley and adjoining ar,,
within the watershed of the Los Angl'.
River. Los Angeles sought to quiet its ti.
to native and imported foreign waters
the area, both surface and subsurface, a,
to enjoin any further pumping or oth
taking of such water by defendants.
In 1958, over Los Angeles' objection, y,
trial court referred the case to the StI..
Water Rights Board (now called the Stat,
Water Resources Control Board) pursue:.
to Water Code section 2001. After L,
Board's report was filed and pretrial h(e
ings completed, trial commenced on Martl
1, 1966.
In 1968, twelve and a half years afti*
the filing of the complaint, the trial cou-
rendered a judgment which was base
upon the principle of "mutual prescrip
tion," as enunciated by the Supreme Cour
in 1949 in City of Pasadena v. City of Al-
hambra, 33 Cal.2d 908, 207 P2d 17, rt,
stricting pumping by the various defend
ants as well as plaintiff City of Los Angr
les. This appeal followed.

LEGAL AND FACTUAL HISTORIC
CAL BACKGROUND
In 1933, the City of Los Angeles conm
menced a quiet title action against the Cit,
of Burbank in which it asked "that it bt
decreed that this plaintiff, City of Los An
geles, is the owner and possessor of tht
prior and paramount right to take and u.
all of the waters of said Los Angeles Rih
er, as well as its tributaries, and includir4
all of the underground waters of said Los
Angeles River from the surface of the
ground down to bedrock of said river, soa
training, maintaining, contributing to, and
forming a part of the surface and subsur-

The remaining defendants either dis-
claimed, defaulted or were dismissed.





CITY OF LOS ANGELES v. CITY OF SAN FERNANDO
Cite ni,, Ap ip.. 10.5('nil.l itr. 77


Sflow of said stream ." An
,n'il action was commenced in 1936
..it the 'ity of (;lcndale, and the two
,w ,.,r rce consolidated for trial. Los
,. l< s' claim was based upon its status as
.,,r to the Pucblo of Los Angeles-
S I-.alled "pueblo right" and its right to
.1 ,.Il use water imported by it through
hrens River Aqueduct.
:hai litigation was finally determined by
spring Court of this State in 1943 in
,, I.os Angeles v. Glendale, 23 Cal.2d
;.' I'.2d 289 (hereafter "Glendalc").
Sf,,liwing description of the compo-
,, and configuration of the Los Ange-
..irr from the opinion of Justice Tray-
elil serve to illuminate the holdings in
asc and, with our additions, in this
&~ 'll.
trkccn bedrock and the surface soil
: ,nd, on the floor of the San Fernan-
*.'a:c), there is a layer of gravel and
:io which most of the water reach-
: ;r floor of the valley sinks. As a re-
She subsurface of the valley holds a
rlm:ss of water that fills the inter-
Si lween the rocks and flows toward
.,~ecr end of the valley, eventually ris-
*. Income part of the surface flow of
i .\ Angeles River. This water has
Sources: (1) the waters normally
< .t in the valley; (2) the flood waters
i'.Vcoima Creek and Tujunga Creek,
* h formerly flowed violently into the
\rngiles River and thence into the Pa-
Ocan during periods of heavy rain-
Sbut which are now dammed by the
.. Angeles Flood Control Authority and
--dt slowly during dry seasons to be-
r" pairt of the mass of water beneath
i rface of the valley; (3) spread wa-
'" from the Owens River Valley, brought
ulaintiff, city of Los Angeles, to the
i-rnando Valley where they are spread
:lr gravels of the valley so that they
4, !C stored in the subsurface thereof and
*mtied when they reach the lower end
*: t valley; (4) return waters, which
;,Ilre 27 per cent of certain water from
0"%ens River Valley sold to the farm-
f'' f the San Fernando Valley, and which
:i Cal Rptr.--6


settle after use
join the mass of
ed when sold."
page 292.)


beneath the surface and
water below, as anticipat-
(Pages 71-72, 142 P.2d


A fifth source of water has since been
added. Colorado River water is purchased
by Los Angeles, Burbank, Glendale and
Crcscenta Valley County Water District
(also a defendant in this action) as mem-
bers of the Metropolitan Water District of
Southern California (hereafter referred to
as "MWD"), and delivered to users in the
area. A portion of this water, after deliv-
ery, likewise joins the underground waters.
The entire watershed which feeds the
Los Angeles River, both surface and sub-
surface, which lies above Gauging Station
F-57 of the Los Angeles County Flood
Control District located in the "Narrows"
just above the confluence with the Arroyo
Seco, constitutes what the trial court here,
and we hereafter, refer to as the Upper
Los Angeles River Area (ULARA).
The. City of Glendale was incorporated
in 1906, and by 1910 had a population of
2746 persons. The City of Burbank was
incorporated in 1911 and by 1920 it had
only reached a population of 2913 persons.
Justice Traynor continued in Glendale:
"Before 1913, when plaintiff completed its
aqueduct from the Owens River Valley,
plaintiff used substantially all of the water
in the San Fernando Basin for the needs
of its inhabitants. Thereafter, plaintiff
used only part of the water in the valley,
and defendants city of Glendale and city of
Burbank were able to pump sufficient wa-
ter from the valley to satisfy their needs.
In 1914 and subsequent years, the city of
Glendale spent $5,602,075.94, in the acquisi-
tion of lands, drilling of wells, and installa-
tion of a distribution system. The amount
of water taken by the city of Glendale
steadily increased through this period.
Meanwhile, the city of Burbank expended
$2,090,160 for similar purposes, and took
water in constantly increasing amounts
from the valley. Both cities took the wa-
ter under a claim of right. Both cities
have available other sources of water,


I C







105 CALIFORNIA REPORTER


since they are members of the Metropoli-
tan Water District, and can purchase Colo-
rado River water from it. A substantial
part of defendants' investment in distribu-
tion systems would presumably be useful
for the distribution of water from this
source as well as from the present source."
(P. 72, 142 P.2d p. 292.)
The trial court in Glendale had rendered
judgment for Los Angeles. declaring that
the city did have a prior and paramount
right to both the native and foreign waters
in the basin, but not the impounded flood
waters from Pacoima and Tujunga creeks
which are tributary to the Los Angeles
River. (Los Angeles had withdrawn its
prayer for an injunction against extrac-
tions by the defendant cities because it was
stipulated that there was still a surplus of
water in the basin.)
The Supreme Court unanimously upheld
Los Angeles' right to all surface and un-
derground waters in the basin and (modi-
fying the trial court's judgment) the im-
pounded flood waters as well. Los Ange-
les' right to use the basin to store its im-
pounded water from the Owens River was
confirmed, along with the right to recap-
ture that portion of such water which sinks
into the underground reservoir after deliv-
ery to farmers for irrigation.

[1,2] The declared policy underlying
the water law of the State of California is
enunciated in article XIV, section 3 of the
California Constitution and is essentially
that there shall be no waste. No one has a
right to extract from a natural stream or
watercourse more water than is reasonably
necessary for the beneficial use to be
served. Hence the existence of surplus
water in a river precludes the issuance of
an injunction in favor of a riparian owner
to prevent the extraction of such surplus.
In the instant case Los Angeles alleged
that the surplus was now exhausted and
that it was now entitled to prevent any
taking of the water from the basin because
its needs were equal to the entire supply.
It prayed for an injunction against all fur-
ther pumping by defendants.


lDefceidants in their answers, among oth
cr things (1) denied the existence of th,
"pueblo right," (2) claimed that, iln ;,,a
event, they were taking Owens River wa-
ter, not native water, (3) contended th1,
the water they were taking was and is sur.
plus, and (4) alternatively, that there was
no'surplus but in fact a shortage of water
in the basin and that they had been ex.
tracing water therefrom for more that
five years and had acquired a prescripti,
right by such adverse taking.
ThrQughout the course of the trial the
defendants mainly focused upon denying?
the existence of the pueblo right and esta;.
lishing the prescriptive right. They aban.
doned the contention that the water wal
surplus. The claim to a prescriptive right
was predicated upon a showing that since
1942 there has existed in the basin a state
of what is known as hydrologicc over.
draft;" that is, that the average annual;
extractions were exceeding what was de-
fined as a "safe yield."
The reference to the State Water Rights
Board called for an investigation and re-
port upon specified physical facts involved
in the case which were relevant to the is.
sues posed from the court's view of the
law of the case as summarized below.
Based upon that report plus extensive
testimony concerning the hydrology of the
basin, and after hearing voluminous expert
testimony on water rights under Spanish
and Mexican law, the trial court made 14;
findings of fact (many of which were in
reality conclusions of law) and 29 conclu-
sions of law, upon which it based its 20-
page judgment. The portions of the find-
ings, conclusions and judgment pertinent to
our decision may be summarized as fol-
lows:
1. Los Angeles has no pueblo water
rigt. The question is not governed bi
stare decisis, because earlier decisions to
the contrary were ill-considered and based
on erroneous translations, and their hold-
ings were dicta because no injunction was
ever granted to protect such right in ani
city in California. Changes in fact anW


I


.





CITY OF LOS ANGELES v. CITY OF SAN FERNANDO
Cite an, App., 103 COnl.tlir. 77


,,occurring since the decision in Glen-
.!, would make it inequitable to hold that
,,Ilquestion was res judicata as to Glen-
i',- and Iurlian.k.
S*I'he UL.ARA consists of four sepa-
., %ub-ba;sins: the San Fernando Sub-
iin (by far the largest), the Sylmar
..i, .sin, the Verdugo Sub-Basin and the
r I Rock Sub-Basin. Each of the four
,.!.,%ilns is independent of the others,
the smaller ones are not tributary to
.,. surfacee water supply of the Los
!cs River system contained in the San
.,fAindo Sub-Basin. Each sub-basin con-
a common source of supply to parties
,-IRng or otherwise taking water there-

There has been a state of hydrologic
,crtraft of water existing in the ULARA
more than five years since 1941-1942:
; i., the total water taken during each
..ich years exceeded the average annual
uoply. Not stated, but necessarily im-
,, Iyv this in light of the evidence, was a
.cltsion of law that Los Angeles had no
,t to manage the San Fernando basin as
rutural reservoir by deliberately lowering
*% around water level from 1942 to 1953 in
.cr to provide storage for excess water
i c.t" years of above-average supply.
l The parties have acquired mutual
:c-,criptive rights in various specified
u.ontitics in the limited supply in the basin
S*d its sub-basins, based upon their past

The parties may pump 'specified
;,rounts from their wells in the basin and
*he various separate sub-basins, under the
*::pecrvision of a court-appointed Water-
.Aster and subject to change under the
, ,t:mnuing jurisdiction of the court.
'. To avoid economic hardship to San
i crnando, that city may pump the addi-
' ..al water it needs, within a specified
:it, and Los Angeles must reduce its
-*n-.mg by an equal amount, provided San
' tando reimburses Los Angeles for the
'csrary replacement water at a rate
-i. al to the MWD "delivered water" price


charged Los Angeles, plus $10 per acre
foot.
7. Los Angeles may no longer "spread"
any Owens River water, to artificially re-
charge the basin, without court approval
after notice and hearing.
8. Los Angeles must pay all of the ap-
proved costs of defendants. In a separate
judgment, Los Angeles was also ordered to
pay the entire costs of the reference to the
State Water Rights Board.

I. LOS ANGELES' PUEBLO RIGHT:
STARE DECISIS AND RES JUDICA-
TA
In 1943 the California Supreme Court, in
its decision in Glendale, supra, at page 73,
142 P.2d, at page 292, said: "It has long
been established that as successor to the
pueblo of Los Angeles the city of Los An-
geles has a right, superior to that of a ri-
parian or an appropriator, to satisfy gts
needs from th waters nf the Los Angeles
River Lux v. Haggin, 69 Cal. 255, 329, 4
P. 919, 10 P. 674; Vernon Irr. Co. v. City
of Los Angeles, 106 Cal. 237, 39 P. 762;
City of Los Angeles v. Pomeroy, 124 Cal.
597, 57 P. 585; Hooker v. Los Angeles,
188 U.S. 314, 23 S.Ct. 395, 47 L.Ed. 487, 63
L.R.A. 471; Devine v. City of Los Ange-
les, 202 U.S. 313, 26 S.Ct. 652, 50 L.Ed.
1046." (Emphasis added.)
Lux v. Haggin (1886) had discussed
pueblo water rights under Spanish and
Mexican law, but its comments were ex-
pressly dicta. (See 69 Cal. p. 332, 4 P.
919, 10 P. 674.) However, the Court, in
Vernon Irr. Co., supra, decided in 1895,
undertook a further review of Spanish and
Mexican law, together with the history of
the pueblo and city of Los Angeles, and
confirmed the existence of that city's prior
and paramount right to the use of the wa-
ter of the Los Angeles River.
Thirty-five years later, in City of San
Diego v. Cuyamaca Water Co., 209 Cal.
105, 287 P. 475, the Court stated: "We
are of the opinion that the sub-
ject is no longer an open one for further
consideration and review before this court,


i~iaC -e







105 CALIFORNIA REPORTER


and that the proposition that the
prior and paramount right of such puellos
and their successors to the use of the wa-
ters of such rivers and streams necessary
for their inhabitants and for ordinary mu-
nicipal purposes, has long since become a
rule of property in this state, which at this
late date [1930] in the history and develop-
ment of those municipalities which became
the successors of such pueblos we are not
permitted, under the rule of stare decisis,
to disturb." (P. 122, 287 P. p. 484; em-
phasis added.)
Thirty-six years later the trial court in
this case nevertheless received, over Los
Angeles' objection, evidence on the Span-
ish and Mexican law relating to pueblo wa-
ter rights and made various conclusions of
law culminating in the following: "15.
The City of Los Angeles did not and does
not own, hold, possess, exercise or enjoy a
prior or paramount right to the use or ben-
efit of all, or any part, of the waters of
the Los Angeles River or of the Upper Los
Angeles River Area by reason of its being
the successor of the pueblo of Los Angeles.
16. [or] by reason of the doc-
trine of res judicata."

[3-5] This was error. "Courts exercis-
ing inferior jurisdiction must accept the
law declared by courts of superior jurisdic-
tion. It is not their function to attempt to
overrule decisions of a higher court."
(Auto Equity Sales, Inc. v. Superior Court,
57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 324,
369 P.2d 937, 940.) The rule applies with
particular force to questions of law con-
cerning property rights, as to which the
Supreme Court itself recognizes the special
need for certainty. "Where judicial deci-
sions have become established as
rules of property, it is the duty of the
court, on the principle of stare decisis, to
adhere to such decisions without regard to

2. The court found applicable the exception
to res judicata which is justified by three
circumstances, all of which it found to
exist: (1) a change of law (Pasadena
v. Alhambra, discussed below), (2) a
change of facts (urban growth since
the decision of Glendale), and (3) because


how it night be inclined to decide if the
question were new." (Abbott v. City ,f
Los Angeles, 50 Cal.2d 438, 457, 326 [P.2,
484, 495, quoting 21 C.J.S. 216, pp. 3(
400.)
Whether Los Angeles' pueblo right i,
also considered a matter of res judicata a
agaitnt defendants Glendale and Burbank
is immaterial. As a rule of property, it af.
fccts all defendants equally, regardless of
which ones may have participated in ear.
lier litigation over the question.2

II. SCOPE OF THE PUEBLO
RIGHT: SEPARATE BASINS
In Glendale the Supreme Court said:
"The past decisions of this court have stat-
ed unequivocally that the'pueblo right in-
cludes the right to all of the waters of the
Los Angeles River and the waters supply.
ing it." (Page 74, 142 P.2d page 293, cit-
ing Los Angeles v. Hunter, 156 Cal. 603,
105 P. 755, and Pomeroy and Vernon, su.
pra; emphasis added.) Appellant's right
to use the San Fernando Valley for under.
ground storage of native water was es-
tablished in Pomeroy (124 Cal. pp. 630-631,
57 P. 585) and Hunter (156 Cal. pp. 607-
608, 105 P. 755).
Further 23 Cal.2d at page 75, 142 P.2d at
page 293, the court stated: "[T]he pueblo
right has always been measured, and there-
fore circumscribed, by the needs of the
city. It thus insures a water supply for an
expanding city with a minimum
of waste by leaving the water accessible to
others until such time as the city needs it."
It is undisputed that in 1913, when the
Owens aqueduct water was introduced into
the basin, Los Angeles was already using
all of the "safe yield" of native water then
in existence. Any surplus which existed in
the basin thereafter was the result of the
imported water introduced by the City of

"Great public interests are here involved
and a rigidly legalistic application of the
doctrine of res judicata in this case would
defeat the ends of justice." (Finding
No. 59(a).) The court did not explain
the last item.


~1





CITY OF LOS ANGELES v. CITY OF SAN FERNANDO
Clit asm App.. 105 Cal.Itltr. T7


,:,i ngcles. It is further ( icontrovcrtc~
i the needs of thitt portion of the
C,~ City of Los Angeles such as lies
i(sl the original pueblo boundary alone
,~eccds the safe yield of the native
- r in the basin.
'e scope of the pueblo right in terms
area and the character of the water
,!,, o ,been previously settled. Again
..e*ngi from Glendale, at page 73, 142 P.
page 292, "Because the flow of the
dependent on the supply of water
,' held that the pueblo right includes a
'. right to all of the waters in the ba-
An examination of the pleadings,
,:0. and judgment which were ap-
I, in the Glendale decision establishes
,I- peradventure that the ULARA as
..,,d and covered by the judgment in
,-A is identical with the area covered
S.. judgment in Glendale.

S10] Whether the underground stor-
Sarea consists of four separate basins
O considered as one water field, the
..s judgment quieting Los Angeles'
t< the use of the water in ULARA
--, each of the four basins. Even con-
the existence of such separate ba-
t, I does not follow that water trapped
,tm constitutes a "source of supply"
,A ,tinc from Los Angeles' pueblo right.
**i acre foot of water pumped out of
tr. i tributary basin will inevitably leave
,- equal volume of empty storage capacity
'* ,h will be filled by rainfall and water
the tributary streams sinking into the
*t.l--water which would otherwise
over the top of the impervious rock
,*ter and down into the San Fernando
6n; It has long been established that
*' entiitlcd to surface flow can prevent
i. jumping of underground "support wa-
* which diminishes that flow. (Barton
*- and Water Co., et al. v. Crafton Wa-

t I:,ough not necessary to our decision
because of our conclusion that pre-
P"':!ion does not lie against Los An-
4'-s' water rights, we believe the exclu-
** right to use an underground basin


ter Co., 171 Cal. 89, 95, 152 1'. 48; Verdu-
go Canion Water Co. v. Vcrdugo, 152 Cal.
655, 699, 93 P. 1021; Montecito Valley
Water Co. v. Santa Barbara, 144 Cal. 578,
588, 77 P. 1113; Vincland Irr. Dist. v.
Azusa Irr. Co., 126 Cal. 486, 496, 58 P.
1057; Lemm v. Rutherford, 76 Cal.App.
455, 457-460, 245 P. 225.) We hold that
this rule applies even though the under-
ground water supporting surface flow is
held in a natural basin from which the
support water could not itself escape by
underground flow. It follows that, as a
matter of law, Los Angeles' pueblo right
includes ground water underlying all por-
tions of the ULARA, except that resulting
from the importation of water by defend-
ants which has percolated into and become
part of the supply as discussed below.
[11, 12] It is also not open to question
that the City of Los Angeles has the right
to use the basin to store and transport its
imported water and to recapture its im-
ported water for use either within or out-
side the limits of the original pueblo.3
(Glendale, supra, 23 Cal.2d pp. 76-77, 142
P.2d 289.)

III. PRESCRIPTION AGAINST MU-
NICIPAL WATER RIGHTS
After concluding that Los Angeles did
not possess a "pueblo right," the trial court
held that the various parties, having all
taken water from the ULARA for more
than five years after depletion of the sur-
plus, had gained mutually prescriptive
rights to the ground water in the area.
The court then determined such rights by
establishing quantities of annual entitle-
ment, enjoining any further taking except
under the court's continuing supervision
through a Watermaster.
[13] Pasadena v. Alhambra, 33 Cal.2d
908, 207 P.2d 17 (1949), relied upon by the
court for its application of the doctrine of

as a natural reservoir must include the
right to lower the water level in years
of relative drought in order to provide
capacity to capture excess water in years
of above-average supply.







105 CALIFORNIA REPORTER


mutual prescription, is not a binding prece-
dent here, for two reasons. First, it did
not involve any city with a pucblo right,
but only cities and other parties claiming
as appropriators and overlying owners.
Los Angeles' pueblo right, and its clear ti-
tle to the Owens River water imported as
a result of its foresight and at its sole ex-
pense, gave it a priority of legal claim
which removes the required element of mu-
tuality. Second, the cities there had stipu-.
lated that their water usage was adverse,
open and notorious and under a claim of
right, and that issue was accordingly not
raised upon appeal. (Page 922, 207 P.2d
17.)
Defendants here claimed a prescriptive
right to take Los Angeles' pueblo-right wa-
ter or its imported Owens River water or
both. They introduced evidence tending to
prove that there had been an absence of
surplus since 1942, and that their continued
extraction of water had constituted an ad-
verse appropriation lasting for more than
five years. We must accordingly decide
whether prescriptive title .to water rights
can be acquired by one city against another
or whether in any event, under these facts,
prescriptive title could be acquired against
Los Angeles.
The trial court's finding that adverse
use, and thus the prescriptive period, began
in 1942 cannot withstand scrutiny. One of
the defendant's own experts testified in the
case at bar that as of 1942, when the al-
leged condition of overdraft was supposed
to have commenced, the basin was full and
overflowing.
Thus, Los Angeles had in 1943 estab-
lished its right to all of the native waters
in the basin and its right to recapture its
imported water, but because of a surplus
which was then flowing in the basin, it
was unable to obtain an injunction. The
result is that any pumping by the de-
fendants since that date has been subordi-
nate to and presumptively consistent with
the rights of the City of Los Angeles. In
the absence of notice to the contrary, Los


Angeles had a right to rely on its previous.
ly obtained judgments.
Assuming arguendo that defendant
could legally obtain prescriptive water
rights against Los Angeles evidence on the
issue of notice to Los Angeles was insuff.
cient to support the court's finding of prr.
scription in either of two respects: i
failed to establish (1) notice that the tak-
ing was adverse, or (2) notice that the tak.
ing was under a claim of right.

[14] In the absence of actual notice t,-
the record owner, establishing a prescrip.
tive right requires that the taking be s
open and notorious that a prudent owner
can be presumed to realize not only the
fact of the taking, but that such taking
was adverse to his interests. (Kerr Land
& Timber Co. v. Emmerson, 268 Cal.App
2d 628, 634, 74 Cal.Rptr. 307.)
Defendants here between 1942 and 1955
did not give Los Angeles any formal notice
of an adverse taking. The mere pumping
of the water, concededly known to Los An.
geles, was not tantamount to notice that
the taking was adverse. Defendants' claim
of adversity was based on the fact that
there was a shortage of water in the basin.
The proof of that fact was so technically
complicated, occupying the referee and the
trial court here as extensively as it did,
that knowledge of its existence could not
be presumed.

[15] Actual or constructive notice that
the defendants were taking under a claim
of right was also required. (Kraemer v.
Kraemer, 167 Cal.App.2d 291, 306, 334 P.2d
675.) Again, mere knowledge of defend-
ants' pumping was insufficient because
there are two levels of right to consider.
Defendants had a right to use surplus wa-
ter because of the constitutional policy
against waste. But such use was consist-
ent with Los Angeles' more basic right-its
legal title to the water. There mere taking
without more raised no presumption that
Los Angeles was aware that defendants
claimed legal title to the water.


1 11 0 Il


1






CITY OF LOS ANGELES v. CITY OF SAN FERNANDO
Cite a~, Ari., 105 Cal.ltitr. 77


161 We turn to the basic question of
..her Imlnicipal water rights are subject
',rescription. If only Los Angeles'
', right water were involved here, that
would itself suffice to preclude de-
,,*,-t from gaining prescriptive rights
..,: s Los Angeles was taking all the
, it needed. In Glendale the Supreme
,, .aidi: "Since the pueblo right enti-
% ,!rmtiff [Los Angeles] to take only
. atcr that it needed, however, it had
t-n-ton to object to the taking of the
S,.lcr by defendants. City of San
S. v Cuyamaca Water Co., supra [209
131-135, 287 P. 475]. It is settled
appropriation must invade the
,. of another before it can destroy
... the establishment of a prescriptive
[Citation.]" (23 Cal.2d, page 79,
i 2,1, page 295.)
\:art from that special effect of the
%' r:Lht, however, when, as here, there
S.::.am of prescriptive right to water
,- h a mixture of native pueblo-right
frri~n water owned by a city, two
S must be considered.

'Civil Code section 1007, as it read
i'35 to 1968, provided, in pertinent
-r (A follows: "[N]o possession by any
-i. firm or corporation no matter how
Scontinued of any water
S dedicated to or owned by
. city shall ever
into any title, interest or right
Ssuch city .
S,!o,(lt as to whether "corporation" as
: that statute includes a municipal
;ration, is resolved by Code of Civil
c!ire, section 1240, which provides in
"3) [P]roperty appropriated to the
Suf any incorporated city
may not be taken by any other
incorporated city while
p~rperty is so appropriated and used
S1"< public purposes for which it has
U* appropriated." As the Supreme
hinted in Glendale, "The acquisition
r municipality of the water right, for
S'h holder of the right receives only
.*' is 'inverse condemnation' (Hill-


side Water Co. v. Los Angeles, supra, 10
Cal.2d [677] at page 688, 76 P.2d 681), and
property belonging to one municipality can-
not ordinarily he condemned for the benc-
fit of another. Code Civ.Proc., 1240."
(23 Cal.2d, p. 80, 142 P.2d, p. 296.)
[18] Statutes dealing with the same
subject are, if possible, to be construed so
as to harmonize them. (Select Base Mate-
rials v. Board of Equalization, 51 Cal.2d
640, 645, 335 P.2d 672; Merrill v. Depart-
ment of Motor Vehicles, 71 Cal.2d 907,
918, 80 Cal.Rptr. 89, 458 P.2d 33.) To in-
terpret Civil Code section 1007 as allowing
a city to acquire a water right indirectly
from another city, without compensation,
when acquisition directly by condemnation
with compensation is expressly forbidden
by section 1240 of the Code of Civil Proce-
dure, would result in an incongruity which
we cannot assume the legislature intended.

[19] We conclude that the combined
effect of the two statutes quoted above is
to prevent the acquisition by either a pri-
vate party or another city of prescriptive
title to water owned by a city.

IV. LOS ANGELES ENTITLED TO
INJUNCTION: SCOPE
[20] Los Angeles has a prior and para-
mount right to all native waters in the
ULARA, including captured flood waters
as well as all water imported into the
ULARA by Los Angeles through the Ow-
ens River Aqueduct and from other
sources, together with water from all of
these sources which percolates into the un-
derground storage. Los Angeles has the
further right to use all of the underground
basins in the ULARA for storage of na-
tive and imported waters.

[21] Los Angeles is therefore entitled
to an injunction against all defendants to
prevent their further pumping of any of
said waters belonging to Los Angeles.
Not all of the water in the basin, how-
ever, belongs to Los Angeles. Defendants
Glendale, Burbank and Crescenta Valley
County Water District purchase water


L I







105 CALIFORNIA REPORTER


from the MWD, some portion of which,
after use, becomes "return water" which
percolates into the underground reservoirs.

The issue thus presented, and one which
was not dealt with by the trial court, is the
defendants' right to recapture the return
water or its equivalent.

[22] One who imports water and uses a
natural stream to convey it may recapture
an equal amount in spite of its having been
mingled with the natural waters of the
stream. (Butte Canal & Ditch Co. v.
Vaughn, 11 Cal. 143; Stevens v. Oakdale
Irrigation Dist., 13 Cal.2d 343, 90 P.2d 58;
see Wiel, "Mingling of Waters" (1915), 29
Harv.L.R. 137, 147-152.) The Supreme
Court applied this rule in Glendale, holding
that Los Angeles had a right to recover
the return water which results from the
deep percolation of Owens River water
after it has been sold to farmers and used
for irrigation. (23 Cal.2d, pp. 77-78, 142
P.2d 289.) (See also Moskovitz, "Quality
Control and Re-use of Water in Califor-
nia" (1957), 45 Cal.L.R. pp. 586, 595-603.)

[23] The rule applies equally to the re-
capture of return waters by those defend-
ants who purchase MWD water.
The report of the State Water Rights
Board as Referee included a finding that
during water years 1949-1950, 1954-1955
and 1957-1958 the portion of all imported
waters which returned to the underground
reservoirs was 25.9% and 27.0% and 26.-
5%, respectively. No finding was made,
however, as to the percentage of such re-
turn water attributable to imports by each
party separately. Nor was any calculation
made of the net credit for return waters
due to the re-use of the return water after
recovery.4 Such findings must be made
upon remand, in order to prepare a judg-
ment in accordance with our conclu-
sions.

4. The necessary calculation involves a sim-
ple problem of algebra which the trial
court can solve as to each importing de-
fendant.


V. SAN FERNANDO'S PROrILIN
AND TIIE "I'IIYSICAL SOLUTION'*
The trial court found that San Fernand,,
was entitled to 2,370 acre feet per year a,
its share in the mutually prescripti%.
rights, and decreed that it could pun,
2,737 acre feet in "restricted pumping.
subject to change under court supervisor
through the Watermaster. The court al,
found that San Fernando would need up tr
an additional 850 acre feet per year, aver.
aging an estimated 318 acre feet, and tha;
it "has no other present source of water
supply to meet its needs [other than it;
wells]." If San Fernando were forced t,
join MWD to obtain the additional 31l
acre feet, according to the trial court, it5
cost would be $150,709 or $502 5 per acre
foot, exclusive of facilities to deliver the
water, "which facilities do not now exist
and would be very costly to construct," and
this would cause "great and grievous hard.
ship" to San Fernando. The judgment ac-
cordingly provided that San Fernand,,
could pump up to 850 additional acre fett
per year as needed, provided it paid Los
Angeles $10 per acre foot "plus the
average cost per acre foot to the City of
Los Angeles for water purchased by it
from M.W.D. [to replace the water taken]


This hardship was more apparent than
real. However, the problem is now moot
We are advised that since the entry of the
judgment in this matter, City of San Fer-
nando has joined the Metropolitan Water
District.

VI. COSTS
In light of its findings of fact and con-
clusions of law, the trial court awarded a
total of $59,834.80 in ordinary coits to var.
ious defendants, and, by additional sums in
such award plus a separate judgment, also
ordered Los Angeles to pay 97V% of the

5. The court's figure is apparently a mis-
calculation. The correct amount is $474
per acre foot.








---,..


~-ZYN.-i


__


Micl~X*W~IlhUyN*arrl~t-L~-L-l'l ^C-.lllfL^~W U1I1~~. ~^.







PERRY v. WORKMEN'S COMPENSATION APPEALS BOARD
CJ.App.3d 828 Citna n Aip.. 10i'nI.Itir. O
.. f reference to the State Water Re- issue, Los Angeles should pay
o controll Hoard, a sum of $480,836.- the costs, and the other half sl
Ihe total cost award against Los An- portioned among the defendal
thi, aggregated $540,670.80. in such manner as the court de
c,, ed not discuss the correctness of ble.
I .,al of those rulings because our The principal judgment an(
,,,,,s set forth above require a cor- ment in favor of the State W
t,,l.Crterination of liability for costs. Board are both reversed. The
., ordinaryy costs, section 1032 of the manded with directions that th
,. Civil Procedure reads, in pertinent make findings and enter judg
In the superior court, except as cordance with the principles w
e. .., expressly provided, costs are al- ed.
,.,f course: (a) To plain-
;.,, judgment in his favor: ROTH, P. J., and FLEMII
,.at:on which involves the title or cur.
,, on of real estate .."


one-half of
lould be ap-
its involved
ems equita-


I the judg-
'ater Rights
cause is re-
e trial court
ment in ac-
e have stat-



IG, J., con-


: -It has been repeatedly held that
,4!, provisions awarding costs apply
;t!lon affecting conflicting claims of
.. ,hts. [Citations.]" (Witherill v.
4. Cal.App. 286, at 299, 240 P. 529,
; The judgment to be entered upon
i.. In accordance with our decision, is
f. vor of plaintiff City of Los Ange-
i,:n the meaning of that section.
;4: after r Code section 2048 provides
;. '.crc, as here one or more parties ob-
., the apportionment of reference
I.rt made by the State Water Re-
,. (Control Board the court "shall de-
*- the expense and its apportionment
, -r ,-ourt deems equitable and shall en-
.:!gncnt against the parties in favor
txoard in the amounts apportioned to

i \g'eles objected to the order of
:r c from the first. In the light of
-l iahsions, the only factual question
ug might have required reference was
r which the court did not request an
r, the percentage of MWD water
I by the various defendants which
i' ;, ut became, and can be expected in
:u.,re to become, return water by
'. rcolation" after use, as discussed
S* I above. Los Angeles should not
S-.e .d to pay any part of the costs of
:1anal reference. If the trial court
--and finds it necessary to make a
: reference of the above mentioned
A 1ptr.---6Va


S KEY NUMBER SYSTEM





28 Cal.App.3d 828
iLeroy M. PERRY, Petitioner,
V.
WORKMEN'S COMPENSATION APPEALS
BOARD, State of California and City
of Palo Alto, Respondents.
Civ. 30648.
Court of Appeal, First District,
Division 1.
Nov. 21, 1972.


City fireman petitioned for review of
award of Workmen's Compensation Ap-
peals Board granting employer credit
against permanent disability award other-
wise payable to fireman. The Court of
Appeal, Weinberger, J., assigned, held that
special disability benefits to which city
fireman was entitled were not in lieu of
permanent disability benefits otherwise
provided for all employees but were cumu-
lative; thus, credit should not have been
allowed against permanent disability award
for payments of special disability benefits.

Award vacated and proceedings re-
manded.


~L~e -




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