Title: Burris & Lagerlof, Stanley C. Lagerlof, H. Jess Senecal and Jack T. Swafford, Los Angeles, for petitioner. Tuttle & Taylor, W'm A. Norris and Alan Beban, Los Angeles, for respondent
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 Material Information
Title: Burris & Lagerlof, Stanley C. Lagerlof, H. Jess Senecal and Jack T. Swafford, Los Angeles, for petitioner. Tuttle & Taylor, W'm A. Norris and Alan Beban, Los Angeles, for respondent
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Burris & Lagerlof, Stanley C. Lagerlof, H. Jess Senecal and Jack T. Swafford, Los Angeles, for petitioner. Tuttle & Taylor, W'm A. Norris and Alan Beban, Los Angeles, for respondent (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 6
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Full Text



45 CALIFORNIA REPORTER


12. Compromise and Settlement -2
It is the policy of the law to discourage
litigation and to favor compromise and vol-
untary settlements of doubtful rights and
controversies, made either in or out of
court.

-4-~---
Burris & Lagerlof, Stanley C. Lagerlof,
H. Jess Senecal and Jack T. Swafford, Los
Angeles, for petitioner.
Tuttle & Taylor, William A. Norris and
Alan Beban, Los Angeles, for respondent.
Surr & Hcllyer, San Bernardino, Clay-
son, Stark, Rothrock & Mann, Corona, and
John B. Surr, San Bernardino, as amici
-uriae.

FRAMPTON, Justice pro tem.*
The petition herein was filed on May 19,
1965, in the Supreme Court and was there-
after transferred here for decision.
Petitioner seeks a writ of mandate to
compel respondent, as its secretary, to cer-
tify to the passage and'adoption of its res-
olution Number 2-65-185, and to transmit a
duly certified copy thereof to the Upper San
Gabriel Valley Municipal Water District.
Petitioner is a municipal water district
organized under the Municipal Water Dis-
trict Law of 1911, as amended (Stats.1963,
ch. 156, div. 20, Wat.Code, 71000 et seq.).
Petitioner's boundaries lie within the Coun-
ty of Los Angeles and its principal office is
located therein. Respondent, at all times
since February 10, 1965, has been and now
is the duly appointed, qualified and acting
secretary of petitioner. It is respondent's
obligation as secretary to perform in addi-
tion to the duties imposed on him by law,
such duties as may be imposed on him by
the board of directors of petitioner. (Wat.
Code, 71360.) The duties imposed on re-
spondent by law and by petitioner's board
of directors include those relating to the
certification of the passage and adoption of
ordinances, resolutions, motions and orders
of the board of directors of petitioner.


Petitioner, Board of Water Commission.
crs of the City of Long Beach, and the
City of Conpton, a municipal corporation
are plaintiffs in an action commenced May
12, 1959, Number 722647, in the Superior
Court of the State of California, in and for
the Couhty of Los Angeles, against nine
cities, two county water districts and seven.
teen public utilities and private water com.
panies, each of which defendants is located
within and produces water from an area up.
stream on tpe San Gabriel River from the
area in which plaintiffs are located. The
defendants named and served in said action,
together with California Domestic Water
Company and the City of Whittier, con.
stitute the major producers of water in the
area in which they are located. Issue was
joined on the filing of the answers to the
amended complaint. By the amended com-
plaint, etitioner and the other plaintiffs,
(a) sought to compel each of the defend.
ants to set forth the nature and extent of
its claims in and to the water referred to
therein as being the water of the "San
Gabriel River System," (b) requested that
the court fix and determine the rights, if
any, of each defendant in and to said water,
and (c) requested that each defendant
therein be perpetually restrained and en.
joined from taking such water in e'esvp of
the amount so fixed and determined hb the
curt. After the commencement of the
action there were certain dismissals had
and new parties added where there had
been mergers or transfers of water rights.
California Domestic Water Company, a
corporation, and Upper San Gabriel Valley
Municipal Water District, a municipal
water district (hereinafter referred to as
"Upper District"), intervened as parties
defendant.
On February 10, 1965, issues having been
joined, the petitioner and the two other
plaintiffs and the defendants entered into.
executed and filed, in the action, a stipula-
tion for judgment which became fully effec-
tive on said date. The stipulation provide,.
inter alia, that upon the occurrence of spec-


* Assigned by the Chairman of the Judicial Council


652


r


I



*j


i

I


i


1 ~31







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 40 Cal.ltptr. 051


ified conditions precedent, the form of judg-
nment attached thereto should be rendered.
The judgment provided for the appointment
of a "Watermaster" consisting of three
persons, one as a representative of "Lower
Area Parties" (as that term is defined in
paragraph 3(c) of the judgment), another
acting as the representative of "Upper
Area Parties" (as that term is defined in
paragraph 3(d) of the judgment), and a
third person jointly nominated by petitioner
and Upper District. The Watermaster,
when duly constituted and appointed pur-
suant to paragraph 6 of the judgment, will
administer and enforce the provisions of
the judgment and the instructions and sub-
Ssequent orders of the court. In order to
perform those duties, the Watermaster, by
S paragraphs 7 through 13 of the judgment,
Sis given certain powers and duties, in-
: eluding the collection of information and
.: data concerning the quantities and quality
14 of various categories of water passing from
"Upper Area" (as that term is defined in
paragraph 3(e) of the judgment) to "Lower
Area" (as that term is defined in para-
graph 3(f) of the judgment). Paragraph 4
of the stipulation for judgment provides as
follows:
"Plaintiffs and defendants agree that dur-
ing the period prior to entry of the attached
form of Judgment, they will cooperate in
endeavoring to collect such information as
the Watermaster would obtain if the at-
tached form of Judgment had been entered
and the Watermaster had been appointed by
the Court pursuant to paragraph 6 of the
Judgment, which information is herein re-
ferred to as 'said information.' To that
end the parties hereto hereby agree that
promptly following the complete execution
of this stipulation by all parties, Upper Dis-
trict and Central Municipal shall each
notify the other in writing as to the identity
of the person who it expects will be nomi-
nated as the representative of Upper Area
Parties or Lower Area Parties, as the case
may be, under paragraph 6 of the Judg-
ment. Upon receiving such notice, Upper
District and Central Municipal shall each


instruct its designated nominee that until
the attached form of Judgment is entered
and the Watermaster has been appointed
pursuant to paragraph 6 of the Judgment
he shall in cooperation with the other
designated nominee do all things reasonably
necessary to obtain such of said informa-
tion as is available from the parties hereto
or any public agency."
On February 17, 1965, petitioner re-
ceived a certified copy of a resolution
adopted by the board of directors of Upper
District, determining that Thomas M. Stet-
son was the person expected to be nomi-
nated as the representative of the Upper
Area parties under paragraph 6 of the
judgment. Following the execution of the
stipulation for judgment by all parties, peti-
tioner's board of directors did determine,
on February 18, 1965, the identity of the
person (hereinafter sometimes referred to
as "said designee") which petitioner ex-
pected would be nominated as the represen-
tative of said Lower Area parties under
paragraph 6 of the judgment. Identifica-
tion of Max Bookman as said designee was
fixed by resolution Number 2-65-185 duly
adopted by petitioner's board of directors
on the above-mentioned date. By the terms
of said resolution, respondent was ordered
to give the necessary written notice to
Upper District, identifying said designee by
certifying to the adoption of said resolution
and by transmitting a duly certified copy
thereof to Upper District. On March 17,
1965, respondent did refuse to either certify
or to transmit as ordered a certified, or
any, copy of said resolution. Respondent
bases his refusal to act upon the grounds
that a substantial question exists as to the
validity of the stipulation for judgment:
"(i) because of the lack of statutory power
of petitioner to enter into the Stipulation

for Judgment; (ii) because of the lack of
statutory power of Upper District to enter
into the Stipulation for Judgment; and
(iii) irrespective of the power of either
petitioner or Upper District to enter into
Stipulation for Judgment."


653


= II







45 CALIFORNIA REPORTER


Respondent's, refusal to comply with the
S order and direction of petitioner's board of
directors was communicated to them at the
board's regular meeting held on March 17,
1965, whereupon the board duly adopted its
resolution Number 3-65-186, wherein the
determination embodied in and approved by
resolution Number 2-65-185, was approved,
ratified and confirmed, and respondent was
further ordered to give the necessary writ-
ten notice to Upper District identifying
Max Bookman as said designee by certify-
ing the adoption of resolution Number 2-
65-185 and by transmitting a certified copy
thereof to Upper District. Contrary to such
further order, respondent did refuse, at the
meeting on March 17, 1965, and still re-
fuses either to certify or to transmit, as re-
quired, a certified or any copy of resolu-
tion Number 2-65-185.
Petitioner asserts that the respondent is
adversely affecting and frustrating the
agreement of petitioner and Upper District
to perform the stipulation for judgment in
accordance with its terms, particularly as
provided in paragraph 4 thereof, in that
until said written notification is given to
r Upper District, Upper District cannot law-
fully comply with paragraph 4 of the stipu-
lation and instruct its said designated nomi-
nee that he shall, in cooperation with the
designated nominee of petitioner, do all
things reasonably necessary to obtain the
information referred to in said paragraph
4 as "said information" to the extent such
information is available from the parties to
the stipulation for judgment or any public
agency. Petitioner urges that respondent's
failure to act is delaying the day when there
will be delivery to said Lower Area of
such quantities of "Make-up Water" (as
that term is defined in paragraph 3(m) of
the judgment) as it is entitled to receive
pursuant to the terms of the judgment once
such judgment is rendered, in that (1) re-
spondent's refusal will result in a substan-
tial delay in the program for cooperative
collection of that information which the
Watermaster would obtain after the judg-
ment had been entered and the Watermas-


ter had been appointed by the court pursue.
ant to paragraph 6 of the judgment, and
(2) the delay in collecting such infornma-
tion will necessarily mean all such infor-
mation will have to be collected after the
Watermaster is appointed by the court, re-
sulting in ail extended delay in the making
of the numerous determinations required
by the Watermaster, which determinations
provide the basis for the obligation of Up-
per District to deliver such "Make-up Wa-
ter," such obligation being determined from
October 1, 1963, under the terms of the
judgment.

Petitioner asserts that the controversy in-
volved in action Number 722647 and its
resolution by the stipulation for judgment
and entry of the judgment, attached there-
to, present vital questions affecting the pub-
lic health, necessity, and welfare of a sub-
stantial portion of southern California area-
wise and populationwise. That the case in-
volves questions of water rights as between
owners of water rights, owners of land, and
inhabitants, of two adjacent areas, the Up-
per Area and the Lower Area, which areas
contain approximately 408.344 square miles,
having a population of approximately 2,-
319,408 and an assessed valuation of ap-
proximately $4,116,788, 225. That Upper
Area contains, in addition to county terri-
tory, the fifteen cities located within Upper
District, plus the cities of Alhambra, Mon-
terey Park, Azusa, and West Covina. Up-
per Area contains approximately 166.47
square miles, has a population of approxi-
mately 737,431 and an assessed valuation of
approximately $1,174,034,000. Of those to-
tals, Upper District contains approximate-
ly 132.47 square miles, a population of ap-
proximately 538,569, and an assessed val-
uation of approximately $855,754,000.
Lower Area contains approximately 241.-
874 square miles, a population of approxi-
mately 1,581,977 and a total assessed valu-
ation of not less than approximately $2,-
942,754,225. Of those totals, petitioner has
approximately 186.78 square miles, a pop-
ulation of approximately 1,136,407 living in
twenty-two cities and county territory, and


654


I C







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.Rptr. 051


., total assessed valuation of not less than
approximatelyy $2,162,434,835. The City of
1ong Beach has approximately 46.77 square
milcs, a population of approximately 368,-
-82 and an assessed valuation of not less
than approximately $683,058,000. The City
Of Compton has approximately 8.324 square
iniles, a population of approximately 76,868
and an assessed valuation of not less than
approximatelyy $97,261,390.
It is urged that Upper District and other
agencies in the Upper Area need and desire
to intensify efforts immediately to replen-
ish ground water supplies in Upper Area.
That so long as action Number 722647 is
pending and the judgment is not entered, it
ts, as a practical matter, impossible for such
efforts to be undertaken in any substantial
respect because the physical facts, such as
location and capacity of water spreading
grounds make it relatively certain that Low-
er Area would be the immediate and pri-
mary beneficiary of much of such replenish-
mcnt, and it would, therefore, be uneco-
nomical and unwise to expend Upper Area
iunds for such replenishment. It is urged
further that Upper Area presently has no
public agency such as a replenishment dis-
trict with power to assess a pump tax to
cover the cost of purchasing and spreading
imported water in Upper Area. Nor can
the pumpers in Upper Area justify, as a
business decision, voluntarily engaging in
such activities on a joint cooperative basis
unless and until the issues in action Number
722647 can first be resolved. It is urged
that it is important that delivery of make-up
water under the terms of the judgment be
expedited to the greatest extent possible
so as to maximize the chances for success
of extensive efforts recently taken by it on
behalf of Lower Area parties to mitigate
salt water intrusion in certain coastal areas
due to excessive overdrafting of presently
inadequate supplies of fresh water. That
the effective date of the judgment for the
purpose of determining the rights and ob-
ligations of the parties thereunder is Oc-
tober 1, 1963, and therefore, it is of the ut-
most concern that a final judgment be ob-
tained at as early a date as possible so that


the necessary quantities of water, both nat-
ural and supplemental, will flow from Upper
Area into the Central Basin and prevent
further salt water intrusion.
Petitioner urges further that controver-
sies over water rights as between adjacent
areas deriving their natural water supplies
from a single river system are now fre-
quently before the courts of California.
That the Santa Ana River system, for ex-
ample, has twice been the subject of such
an action. (Orange County Water Dist.
v. City of Riverside (1957), 154 Cal.App.
2d 345, 316 P.2d 43; (1959) 173 Cal.App.2d
137, 343 P.2d 450; Orange County Water
District v. City of Chino, et al., Orange
County Superior Court, Number 117628,
filed October 18, 1963.) The second such
action is still in its initial exploratory
stages. Petitioner estimates that if it be-
comes necessary to try action Number
722647, a minimum of 200 days of trial time
will be necessary in order to properly try
the case. Therefore, if the approach taken
by the judgment attached to the stipulation
for judgment is approved as a valid solu-
tion for the controversy involved, it will
offer an acceptable prototype consent judg-
ment for use by the parties in other sim-
ilar river adjudication actions. That such
a consent judgment will relieve the courts
of the considerable burden upon available
court trial time, and will substantially re-
duce the time between the commencement
of such actions and the date when effective
relief is available to the downstream users.

[1] Respondent has interposed a demur-
rer to the petition claiming four major
grounds upon which the stipulation and
proposed judgment should be held invalid
as a matter of law. Under these circum-
stances, we must assume the truth of all
material allegations of fact set forth in the
petition. (Stigall v. City of Taft, 58 Cal.
2d 565, 567-568, 25 Cal.Rptr. 441, 375 P.2d
289; 3 Witkin, Cal.Procedure, pp. 2553-
2554.)
We will discuss the four grounds of al-
leged invalidity in the order in which they
appear in the demurrer.


655







45 CALIFORNIA REPORTER


656


r^ I
It is claimed that the stipulation for
judgment is invalid because such an agree-
ment is beyond the powers granted to
petitioners by law.
[2] Section 71751 of the Water Code
provides "A district may commence, main-
tain, intervene in, and compromise, in the
name of the district, any action or proceed-
ing involving or affecting the ownership
or use of water or water rights within
the district, used or useful for any pur-
pose of the district, or a common benefit
to lands within the district or inhabitants
of the district." (Emphasis added.) The
stipulation for judgment here under con-
sideration, when carried into effect by the
terms and conditions of the judgment at-
tached to and made a part of it, will con-
stitute a compromise and settlement of a
controversy affecting the ownership and
use of water and water rights as contem-
plated by such section, and the section con-
stitutes a valid legislative sanction of the
procedure adopted by petitioner in the trial
court.

r
[3] Respondent urges that the clear im-
plication of the stipulation is that the Up-
per District, in exchange for its obligation
to cause 98,415 acre-feet of water to be
available to Lower Area users, is obtaining
a relinquishment of all rights that Lower
Area parties may have, vis-a-vis Upper
Area parties, in the natural waters of the
San Gabriel River system, whether as
riparian owners, overlying owners or ap-
propriators, and that to the extent that the
stipulation would divest the persons repre-
sented by petitioner Central Municipal of
their water rights, it is invalid. He urges
further that the extraordinary power to
divest private citizens of their property
I. Filed on behalf of the Cities of Arcadia,
Covina, El Monte, Glendora, Monrovia
and South Pasadena, Baldwin Park Coun-
ty Water District, San Gabriel County
Water District, Azusa Valley Water Com-
pany, California Cities Water Company,
California Water & Telephone Company,


rights in the absence of an exercise of the
power of eminent domain is obviously not
expressly granted to the district and is,
therefore, available only if it can be im-
plied from the grant of power to com-
promise actions pursuant to the provisions
of section'71751 of the Water Code. The
answer to this is contained within the four
corners of the stipulation and proposed
judgment. These documents do not pur-
port to deprive any individual of a prop-
erty right, brit on the contrary disclose a
careful and concerted effort on the part
of the litigants to conserve and protect
the individual rights to the use of water
within the watershed, where the need for
such water is growing and the supply is
limited. The provisions of the stipulation
and proposed judgment have not been ar-
rived at by guess and speculation, but on
the contrary according to the memorandum
of points and authorities of amici curiae
in support of the petition,' since May of
1959, when the action was commenced,
there have been constant studies and nego-
tiations toward settlement. Negotiating
committees of five men each were appoint-
ed for the plaintiffs and for the defendants
represented by amici curiae. These com-
mittees met together on 45 different oc-
casions. In addition, there were literally
hundreds of conferences both between op-
posing counsel and among the attorneys
and experts on both sides. Further there
were almost continuous studies of various
aspects of the hydrologic picture. Expen-
es involved in arriving at the settlement rep-
resented by the stipulation and proposed
judgment are estimated to exceed $300,000
disregarding the value of the time devoted
by members of the negotiating committees.
It cannot be said that prolonged and costly
litigation on the same subject would result
in any different or better solution than the
physical solution arrived at and contained
Covina Irrigating Company, East Pasa-
dena Water Co., Ltd., Glendora Irrigat-
ing Company, San Gabriel Valley Water
Company, Southern California Water
Company, Suburban Water Systems and
Vallecito Water Co.


1_ ~_____~_~_1_111111___LI-~)li~Y~LIU 1 -~mt~WI~ ----1







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.Rptr. 051


in the stipulation and proposed judgment.
Furthermore, the proposed judgment, in
paragraph 15, provides in part "Full juris-
diction, power and authority is retained
and reserved by the Court for the purpose
of enabling the Court upon application of
any party by motion and upon at least
thirty (30) days notice thereof, and after
hearing thereon (i) to make such further
or supplemental orders or directions as
may be necessary or appropriate for the
construction, enforcement or carrying out
of this Judgment, and (ii) to modify, amend
or amplify any of the provisions of this
Judgment whenever substantial changes or
developments affecting the physical, hydro-
logical or other conditions dealt with here-
in may, in the Court's opinion, justify or
require such modifications, amendment or
amplification. *" Certainly, a de-
termination of individual rights is deferred
or suspended so long as the physical solu-
tion shall continue in effect. However, the
proposed judgment does not by its terms
or by implication eliminate or impair what-
ever rights the Lower Area parties may now
have, even though it does not pass upon
them so long as they are being taken care
of by the physical solution. The adoption
by the parties of a reasonable physical
solution to the complicated problems re-
lating to their respective rights in the use
of the water within the San Gabriel River
system is in accord with the rule laid down
in City of Lodi v. East Bay Municipal
Utility Dist., 7 Cal.2d 316, 341, 60 P.2d 439,
450, wherein the court said "Other sugges-
tions as to possible physical solutions were
made during the trial. The trial court ap-
parently took the view that none of them
could be enforced by it unless the interested
parties both agreed thereto. That is not
the law. Since the adoption of the 1928
constitutional amendment [art. 14, 3], it
is not only within the power but it is also
the duty, of the trial court to admit evi-
dence relating to possible physical solutions,
and, if none is satisfactory to it, to suggest
on its own motion such physical solution."
In the present action all parties thereto
45 Cal.Rptr.-42


have agreed to the proposed physical solu-
tion.
[4] The propriety of the resolution of
complex problems relating to conflicting
claims to the right to use water, by the
adoption of a physical solution of such
problems was also approved in the case
of Rancho Santa Margarita v. Vail, 11
Cal.2d 501, 558-562, 81 P.2d 533.
[5] The proposed judgment also pro-
vides in part (Declaration of Right, para-
graph 4): "* If in the future a
court of competent jurisdiction shall decree
that any person downstream from Whit-
tier Narrows within Central and West
Basin Water Replenishment District who
is not bound by this Judgment, shall have,
as against Upper Area Parties and sub-
stantially all other pumpers in the San
Gabriel Valley, a right to receive from
Upper Area a stated amount of usable
supply consisting of Surface Flow, Sub-
surface Flow, Export to Lower Area or
Make-Up Water, which right arose out of
and is based upon the ownership of land or
the production of water downstream from
Whittier Narrows and within Central and
West Basin Water Replenishment District,
then and in that event the stated amount of
such right so decreed shall not increase the
declared right as set forth in this paragraph
4 [Note: The right of Lower Area parties
and all other persons downstream from
Whittier Narrows, who receive water from
the San Gabriel River system or have rights
in and to such water, to receive from Upper
Area an average annual usable supply of
98,415 acre-feet]; and the receipt of water
from Upper Area by such person in such
stated amount or portion thereof, consist-
ing of Surface Flow, Subsurface Flow,
Export to Lower Area or Make-up Water,
shall be deemed a partial satisfaction of
such declared right." This provision tends
to preserve to an individual the privilege to
establish, in a proper case, his right to use
a specified quantity of water, rather than
to destroy such right. Where a judgment
provides for a physical solution of the
rights of litigants to the use of water, and


657


C







45 CALIFORNIA REPORTER


includes therein appropriate flexibility to
meet pertinent changes and developments,
it is proper that a trial court should re-
tain jurisdiction over such decree. (City of
Pasadena v. City of Alhambra, 33 Cal.2d
908, 937, 207 P.2d 17.)
III
Respondent claims that the stipulation for
judgment is invalid because such an agree-
ment is beyond the powers granted by law
to the Upper San Gabriel Valley Municipal
Water .District, in that (a) the Upper Dis-
trict cannot contract to furnish water out-
side its boundaries and (b) the Upper Dis-
trict is not authorized to contract in a man-
ner that would involve the use of public
funds for private benefit.
[6] As to proposition (a), section 71611
of the Water Code provides "A district may
sell water under its control, without pref-
erence, to cities, other public corporations
and agencies, and persons, within the dis-
trict for use within the district." Section
71612 of the Water Code provides "When-
ever the board finds that there is a surplus
of water above that which may be required
by consumers within the district, the dis-
trict may sell or otherwise dispose of such
surplus water to any persons, public cor-
porations or agencies, or other consumers."
It is upon these sections that respondent
relies as prohibiting the Upper San Gabriel
Valley Municipal Water District from en-
tering into the stipulation. These sections
impose restrictions upon the sale of water
under normal operating conditions. The
litigation, stipulation and proposed judg-
ment here under consideration have a much
broader aspect. The action below raises
issues as to the right of the district to
water within the San Gabriel River system.
Also the complaint asserts rights in the
plaintiffs to water within such system par-
amount to the rights of the defendants
therein named, including the defendant Up-
per San Gabriel Valley Municipal Water
District; and, therefore, in a broad sense,
questions the right of the district to func-
tion as such. Whatever limitations there
may be on the district's power to supply


other than certain enumerated areas \v'i
water, it is clear that if, in order to operate,
its project at all, water must be furnishf,,
to a prior claimant, the district possess,
the implied power so to furnish the water
(City of Lodi v. East Bay Municipal Utili,,
Dist., supra, 7 Cal.2d 316, 341, 60 P.2d 43',

[7-9] As to proposition (b), respond,:.
asserts that the stipulation and propo,:
judgment is in violation of article 4, s,.
tion 31, of the California Constitution,
that it authorizes the use of public fuli
for private benefit. He claims in this re.
gard that the Upper District is attempt:: -
to incur not only the primary obligation t
furnish water or pay money to the Ccntri
Municipal, but has incurred and presumal.,
will continue to incur substantial exp-cn
in connection with this litigation and ti.,
implementation of the stipulation for ju',.
ment to the direct benefit of the other '.
fendants. We assume that respondent hl
reference to the provisions of paragraph i
of the judgment wherein specific oblige
tions are set forth dealing with the phy):
cal solution, and which impose certain oc
ligations upon Upper District in the way ,'
accounting, providing Makeup Water or t-
pay Central Municipal for the benefit of a:.
Lower Area parties for the expense of tr
claiming water or for the purchase of r<
claimed water. Respondent does not mai,
it clear as to how this provision of the C stitution should apply to the problem herr
This provision is a limitation upon thf
power of the Legislature to make or author
ize the making of a gift of public funds f ,
the benefit of a private person. The pri:t'
object and purpose of the stipulation ar,'
proposed judgment insofar as it relate 1-;
Upper District is to preserve to the distr::
and its inhabitants the right to use watl
within the San Gabriel River system. Thlr
obviously is a public purpose and is for ri
benefit of the district and its inhahitan'
and the fact that it may benefit others
incidental. It is well settled that fri::
directed toward a public purpose are r'
within the constitutional prohibition mercf'
because of incidental benefits to individuih'


658





CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Clte as 4 C3al.ltptr. 05


(American Co. v. City of Lakeport, 220
Ci1. 548, 556, 32 P.2d 622; Patrick v.
Riley, 209 Cal. 350, 357-358, 287 P. 455.)
IFtlrtihermorc, the Lcgislature is vested with
a large discretion in determining what is
for the public good and what are public
purposes for which public moneys can be
rightfully expended and that discretion can-
not be controlled by the courts, except when
its action is clearly evasive. (People v.
Standard Accident Ins. Co., 42 Cal.App.2d
409, 414, 108 P.2d 923.) In addition, a con-
tract of reimbursement has been entered
into between the Upper San Gabriel Valley
Municipal Water District (Upper District)
and other defendants in the action below
whereby Upper District will be reimbursed
for expenses incurred by the latter pursuant
to the obligations assumed by it under the
terms of the stipulation and proposed judg-
ment. Such contract is incorporated herein
and is attached hereto as Appendix 3.
Under the circumstances here presented
neither the stipulation nor the proposed
judgment violates article 4, section 31, of
the California Constitution.

IV
[10] Respondent next urges that the
stipulation for judgment is invalid as an
unreasonable and arbitrary exercise of
governmental power. He argues that what-
ever may be the scope of the power of
municipal water districts to compromise
lawsuits, that power, like any governmental
power, cannot be exercised in a way that is
unreasonable, arbitrary or capricious in its
effect on private rights. He claims that
paragraph 4 of the so-called "Declaration
of Right" of the proposed stipulation for
judgment indicates most clearly the arbi-
trariness and unreasonableness of this stipu-
lation. He says that Lower Area parties
are declared to have rights of unknown
nature and scope in the water supply of
the San Gabriel River system; but the
substituted exchange for those rights-in
essence the Upper District's obligation to
make 98,415 acre-feet of water available
annually to downstream users-runs to
Lower Area parties and all other persons


downstream from Whittier Narrows who
receive or have rights in water of the San
Gabriel River system. He asserts that
these other persons include water users in
the West Basin who arc not represented in
the action and who clearly would not be
bound by any judgment entered therein.
He claims that if such persons, in a sub-
sequent action, successfully assert a right
against Upper Area parties to receive water
through Whittier Narrows, the water they
would be entitled to receive would be de-
ducted from the 98,415 acre-feet entitlement
of the Lower Area parties, and thus the
petitioner is attempting to relinquish the
water rights of its inhabitants without ever
ascertaining the nature and extent of those
rights sufficiently to even make a conten-
tion as to their scope, and to accept in
exchange a contractual obligation that, by
its terms, could be reduced in an unknown
amount by a successful claim against the
Upper Area by other users of water from
the San Gabriel River system.
In this contention, respondent has over-
looked the fact that the quantity of 98,415
acre-feet of water which flows from the
Upper Area through the Whittier Narrows
to the Lower Area has been determined to
be the average quantity of water per year to
be expected, and this figure has been arrived
at by constant study over a period of several
years by competent and skilled engineers.
The methods used to arrive at this figure
cannot be said to be unreasonable, arbitrary
or capricious. Furthermore, it is not un-
reasonable to assume that, after prolonged
litigation, the trial court would arrive at a
figure substantially the same as that used by
the parties to the stipulation and proposed
judgment in their effort to arrive at a
practical solution of their problem. It is al-
so reasonable to assume that after such a
prolonged and careful study of the hydrology
of the area by the various water districts,
water companies and municipal corpora-
tions, through their personnel, skilled engi-
neers, and attorneys, they have accurately
assessed the rights of other users, not
parties to the action, so as to minimize the


%sars-----a~ --








45 CALIFORNIA REPORTER


possibility of the loss of water to their
inhabitants in the manner posed by respond-
ent. We find nothing invalid, unreasonable,
arbitrary or capricious in the provisions
contained in the stipulation and proposed
judgment.
V
[11] Next, respondent urges that the
stipulation for judgment is invalid because
such an agreement is beyond the powers
granted to the City of Long Beach by its
charter.2 He does not question the right
of the Board of Water Commissioners to
bring and maintain the action below on
behalf of the city without the authority of
the electorate, even though a judgment ren-
dered therein after a protracted and costly
trial might result in a disposal in whole
or in part of water rights claimed to be
vested in the city. Subdivision (7) of sec-
tion 217 of the charter gives the Board of
Water Commissioners the right "[t]o sue
and be sued in the name of said Board,
and to exercise complete control over all
litigation wherein it is.involved, or which
pertains to any matters within the jurisdic-
tion of said Board; *." (Emphasis
added.) To require the board to obtain the
consent of two-thirds of the qualified voters
of the city each time it became necessary
to make some concession or compromise in
litigation in which the board is involved
would not only deprive the board of its
right to exercise complete control over the
litigation, as is granted by the provisions
of subdivision (7) of section 217 of the
charter, but would set up conditions which
2. "The City of Long Beach shall continue
in the ownership and enjoyment of all
water and water rights vested in it, and
ownership of the right to develop, econo-
mize, control, use, conserve, and utilize
all water flowing or being beneath the
surface of any and all lands now owned
or that may be hereafter acquired by it.
No water or water rights now or here-
after owned or controlled by the city,
shall ever be sold, leased or disposed of,
in whole or in part, without the assent
of two-thirds of the qualified voters of
the city, voting on the proposition at a
general or special election, at which such
proposition shall be lawfully submitted,


are unreasonable and unworkable. The
compromise and settlement of the action
below, by means of a practical solution as
posed by the stipulation, proposed judgment
and contract of reimbursement is not such
a disposal of water or water rights owned
or controlled by the city as would require
the consent of the voters of the city in
order to give it vitality. The purpose of
the action below and of the compromise and
settlement of it is to secure water and water
rights in gross to the inhabitants of the
City of Lohg Beach, not to dispose of
them. The provisions of section 216d of
the Charter of the City of Long Beach have
no application to the situation here and
are not a bar to the Board of Water Com-
missioners in proceeding to a reasonable
compromise and settlement of the litigation,
on behalf of the City of Long Beach.

[12] It is the policy of the law to dis-
courage litigation and to favor compromise
and voluntary settlements of doubtful rights
and controversies, made either in or out of
court. (People ex rel. Dept. of Public
Works v. Forster, 58 Cal.2d 257, 263, 23
Cal.Rptr. 582, 373 P.2d 630; Potter v.
Pacific Coast Lumber Co., 37 Cal.2d 592,
602-603, 234 P.2d 16; Pettie v. Superior
Court, 178 Cal.App.2d 680, 689, 3 Cal.Rptr.
267; Hamilton v. Oakland School Dist., 219
Cal. 322, 329, 26 P.2d 296; In re Estate
of Green, 138 Cal.App.2d 211, 215, 292 P.2d
651.)
The efforts of the parties to the action
pending in the trial court to compromise and
settle their differences by entering into the
and no water shall ever be sold, supplied
or distributed to any person or corpora-
tion other than municipal, for resale,
rental or disposal to consumers or other
persons. Provided that nothing in this
section contained shall be construed to
prevent the ordinary sale and distribu-
tion by the city of water to its inhabitants
for their own use, or to prevent the sup-
plying or distribution by the city of sur-
plus water to consumers or municipal
corporations outside of the city, as else-
where in this article provided." Char-
ter of the City of Long Beach, California,
section 216d, Amendment of 1933.


660











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE 661
Cito as 43 Cl.ltptr. G( l

stipulation for judgment is in full accord The stipulation and proposed judgment
with the policy of the law, and we find no are incorporated herein and are attached
legal obstacle which would stand in the way as appendices 1 and 2.
of the parties entering into and being bound Let the peremptory writ issue as prayed.
by their agreement of compromise as evi-
denced by such stipulation. WOOD, P. J., and LILLIE, J., concur.

Appendix 1

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES


BOARD OF WATER COMMISSIONERS OF THE
CITY OF LONG BEACH, a municipal corporation; CEN-
TRAL BASIN MUNICIPAL WATER DISTRICT, a mu-
nicipal water district; and CITY OF COMPTON, a munic-
ipal corporation,
Plaintiffs,
vs.

SAN GABRIEL VALLEY.WATER COMPANY, a cor-
poration; AZUSA AGRICULTURAL WATER COMPA-
NY, a corporation; AZUSA VALLEY WATER COMPA-
NY, a corporation; CALIFORNIA CITIES WATER
COMPANY, a corporation; CALIFORNIA WATER &
TELEPHONE COMPANY, a corporation; COVINA IR-
RIGATING COMPANY, a corporation; CROSS
WATER COMPANY, a corporation; EAST PASA-
DENA WATER CO. LTD., a corporation; GLENDORA
IRRIGATING COMPANY, a corporation; SOUTHERN
CALIFORNIA WATER COMPANY, a corporation;
SUBURBAN WATER SYSTEMS, a corporation;
SUNNY SLOPE WATER CO., a corporation; VALLE-
CITO WATER CO., a corporation; CITY OF ALHAM-
BRA, a municipal corporation; CITY OF ARCADIA, a
municipal corporation; CITY OF AZUSA, a municipal
corporation; CITY OF COVINA, a municipal corporation;
CITY OF EL MONTE, a municipal corporation; CITY
OF GLENDORA, a municipal corporation; CITY OF
MONROVIA, a municipal corporation; CITY OF MON-
TEREY PARK, a municipal corporation; CITY OF
SOUTH PASADENA, a municipal corporation; BALD-
WIN PARK COUNTY WATER DISTRICT, a county
water district; and SAN GABRIEL COUNTY WATER
DISTRICT, a county water district,
Defendants,
UPPER SAN GABRIEL VALLEY MUNICIPAL WA-
TER DISTRICT, a municipal water district, and CALI-
FORNIA DOMESTIC WATER COMPANY, a corpora-
tion,
Intervenors.


No. 722,647










STIPULATION FOR
JUDGMENT


rr L I I I] I







45 CALIFORNIA REPORTER


Plaintiffs Central Basin Municipal Water
District, a municipal water district (herein
sometimes referred to as Central Munici-
pal); City of Long Beach, a municipal
corporation, acting by and through the
Board of Water Commissioners of the City
of Long Beach; and City of Compton, a
municipal corporation; and defendants City
of Alhambra, a municipal corporation; City
of Arcadia, a municipal corporation; City
of Azusa, a municipal corporation; Azusa
Agricultural Water Company, a corpora-
tion, sued herein as DOE 1; Azusa Valley
Water Company, a corporation, for itself
and as successor by merger to Azusa Ir-
rigating Company, a corporation; Baldwin
Park County Water District, a county
water district; California Cities Water
Company, a corporation (successor by mer-
ger to Columbia Land and Water Company,
a corporation, and to San Dimas Water
Company, a corporation, sued herein as
DOE 3); California Water and Telephone
Company, a corporation; City of Covina, a
municipal corporation; -Covina Irrigating
Company, a corporation; Cross Water
Company, a corporation, sued herein as
DOE 2; East Pasadena Water Company,
Ltd., a corporation, for itself and as suc-
cessor by merger to California-Michigan
Land and Water Company, a corporation;
City of El Monte, a municipal corporation;
City of Glendora, a municipal corporation;
Glendora Irrigating Company, a corpora-
tion; City of Monrovia, a municipal cor-
poration; City of Monterey Park, a munici-
pal corporation; San Gabriel County'Wat-
er District, a county water district; San
Gabriel Valley Water Company, a corpora-
tion; Southern California Water Company,
a corporation; City of South Pasadena, a
municipal corporation; Suburban Water
Systems, a corporation; Sunny Slope Wat-
er Company, a corporation; and Vallecito
Water Company, a corporation; and in-
tervening defendant Upper San Gabriel
Valley Municipal Water District, a munic-


ipal water district (herein sumctimnes re-
ferred to as Upper District); and inter-
vening defendant California Domestic
Water Company, a corporation; stipulate
and agree as follows:
1. A Judgment in the form attached
hereto as Exhibit I may be made and en-
tered by the Court in the above-entitled
action.
2. The following facts, considerations
and objectives, among others, provide the
basis for this Stipulation for Judgment:

(a) By their complaint plaintiffs seek
a determination of the rights of the
defendants, other than Upper District,
in and to the waters of the San Gabriel
River System and further seek to re-
strain defendants, other than Upper
District, from an alleged interference
with the rights of plaintiffs and ersons
represented by Central Municipal in
and to said waters.
(b) At the present time, and for some
time prior to the commencement of this
action, the water supply of the San Gab-
riel River System has been inadequate to
supply the diversions and extractions of
both plaintiffs and defendants other than
Central Municipal and Upper District but
including the persons represented by Cen-
tral Municipal and by Upper District,
and as a result said diversions and ex-
tractions have exceeded, and still exceed,
the natural replenishment of the water
supply of the San Gabriel River System.
(c) The parties recognize and agree
that the natural outflow from the San
Gabriel Valley to the Lower Area as de-
fined in the Judgment has varied, and
will vary from year to year, depending
on the amount of precedent rainfall and
other conditions.
(d) The parties recognize and agree
that there is a need for a declaration of
rights and a physical solution for the


662










CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.Iptr. 051


problems resulting from the inadequate
and varying water supplies of the San
Gabriel River System.
(e) The parties agree that the physical
solution contained in said Judgment will
bring about a fair division of the water
of the San Gabriel River System as be-
tween plaintiffs and defendants other
than Central Municipal and Upper Dis-
trict but including the persons repre-
sented by Central Municipal and by Upper
District.
(f) The parties recognize that it may
be necessary for defendants or some of
them to use supplemental water in order
to comply with the obligations imposed
under said physical solution.

(g) Defendant Upper District is now a
member unit of The Metropolitan Water
District of Southern California,. which
will be supplied with water from sources
in northern California under an existing
contract with the State of California.
Certain of the defendants not within the
area of defendant Upper District are
within the area of San Gabriel Valley
Municipal Water District, which district
also has contracted with the State of
California for delivery of water from
sources in northern California. It is
anticipated that the importation of this
water will augment the natural supply of
ground water within Upper Area as de-
fined in the Judgment. Defendant Upper
District intends to replenish the San
Gabriel Valley with supplemental sup-
plies.
3. The parties hereto hereby waive any
and all Findings of Fact, Conclusions of
Law, and any and all notice of the making
or entry herein of the attached form of
Judgment, and all rights of appeal, if any,
from such Judgment.

4. Plaintiffs and defendants agree that
during the period prior to entry of the at-
tached form of Judgment, they will co-


operate in endeavoring to collect such in-
formation as the Watermastcr would obtain
if the attached form of Judgment had been
entered and the Watermaster had been
appointed by the Court pursuant to para-
graph 6 of the Judgment, which informa-
tion is herein referred to as "said informa-
tion." To that end, the parties hereto
hereby agree that promptly following the
complete execution of this stipulation by
all parties, Upper District and Central
Municipal shall each notify the other in
writing as to the identity of the person who
it expects will be nominated as the repre-
sentative of Upper Area Parties or Lower
Area Parties, as the case may be, under
paragraph 6 of the Judgment. Upon re-
ceiving such notice, Upper District and
Central Municipal shall each instruct its
designated nominee that until the attached
form of Judgment is entered and the Water-
master has been appointed pursuant to
paragraph 6 of the Judgment he shall in
cooperation with the other designated
nominee do all things reasonably necessary
to obtain such of said information as is
available from the parties hereto or any
public agency.
5. Judgment shall not be rendered pur-
suant hereto unless and until the execution
of this stipulation by Central Basin Munic-
ipal Water District and by Upper San
Gabriel Valley Municipal Water District
shall have been validated by a decree or
decrees rendered in a proceeding or pro-
ceedings instituted in a court of competent
jurisdiction of the State of California, and
either such decree or decrees shall have
become final or both of said Districts shall
have further stipulated that said Judgment
shall be rendered.
6. This stipulation may be executed in
counterparts (each counterpart being an
exact copy or duplicate of the original)
and all counterparts collectively shall be
considered as constituting one complete
Stipulation for Judgment.

DATED: February 10, 1965.


663


II I -








45 CALIFORNIA REPORTER


Attorneys
(for the respective party listed oppo-
site and to the right of the respective
attorneys listed below)


Leonard Putnam
City Attorney
Clifford E. Hayes
Principal Deputy City
Attorney
City of Long Beach
By /s/ Clifford S. Hayes



Burris & Lagerlof
Stanley C. Lagerlof
H. Jess Senecal
Jack T. Swafford
By /s/ Stanley C. Lagerlof


Burris & Lagerlof
Stanley C. Lagerlof
H. Jess Senecal
Jack T. Swafford
By /s/ Stanley C. Lagerlof






Lloyd A. Bulloch
City Attorney
City of Compton
/s/ Lloyd A. Bulloch
Burris & Lagerlof
Stanley C. Lagerlof
H. Jess Senecal
Jack T. Swafford
By /s/ Stanley C. Lagerlof


Don D. Bercu
City Attorney
City of Alhambra

/s/ Don D. Bercu


Taylor & Smith
By /s/ Edward F. Taylor


Signature of Stipulating Party and Its
Designation of Mailing Address

Board of Water Commissioners of the
City of Long Beach



By /s/ Fred S. Dean
Its President
By /s/ Helen L. Penland
Its Secretary

1800 East Wardlow Road
Long Beach 7, California


Central Basin Municipal Water District


By /s/ Milo Dellman
Its President
By /s/ Carl Fossett
Its Secretary
7439 East Florence Avenue
Downey, California

City of Compton

By /s/ Chester R. Crain
Its Mayor
205 South Willowbrook Avenue
Compton, California


City of Alhambra


By /s/ Norma L. Yocum
Its Mayor
/s/ William F. Longley
City Hall City Auditor-Clerk
111 South First Street
Alhambra, California










CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
f '% Cite as 40 Cal.Iptr. 051


Attorneys
(for the respective party listed oppo-
site and to the right of the respective
attorneys listed below)-Continued


James A. Nicklin
City Attorney
City of Arcadia
/s/ Tames A. Nicklin


Surr & Hellycr
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

Harry C. Williams
City Attorney
City of Azusa
/s/ Harry C. Williams

Taylor & Smith
By /s/ Edward F. Taylor

Taylor & Smith
By /s/ Edward F. Taylor







Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark



Surr and Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann

By /s/ Donald D. Stark


Signature of Stipulating Party and Its
Designation of Mailing Address-Cont'd

City of Arcadia

By /s/ Dale E. Turner
Its Mayor
City Hall
Arcadia, California


City of Azusa

By /s/ Louis G. Memmesheimer
Its Mayor
City Hall
213 East Foothill Boulevard
Azusa, California

Azusa Agricultural Water Company
By /s/ Hickory S. Jackson
Its President
By /s/ D. H. McKellar
Its Secretary
18352 East Foothill Boulevard
Azusa, California

Azusa Valley Water Company
By /s/ Elbert B. Griffitts
Its President
By /s/ Ira R. Calvert
Its Secretary
P. O. Box "W"
Azusa, California

Baldwin Park County Water District

By /s/ Roy W. Judd
Its President
By /s/ Ralph B. Helm
Its Secretary
14521 East Ramona Boulevard
Baldwin Park, California


45 Cal.Rptr.-42Va


665


a = LI







666 45 CALIFO

Attorneys
(for the respective party listed oppo-
site and to the right of the respective
attorneys listed bclow)-Continued

Allard, Shelton & O'Connor
By /s/ L. A. Shelton

Surr and Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

Bacigalupi, Elkus & Salinger
By /s/ Tadini Bacigalupi
Surr & Hellyer
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

Allard, Shelton & O'Connor
By /s/ L. A. Shelton

Surr & Hellyer
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

Kerckhoff & Kerckhoff
By /s/ Anton W. Kerckhoff

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

George C. Gillette
/s/ Geo. C. Gillette


RNIA REPORTER


Signature of Stipulating Party and lt
Designation of Mailing Address-Conlt.

California Cities Water Company
By /s/ Donald R. O'Neill
Its Vice-Prcsidcnt

By /s/ Robert W. Bruce
Its Asst. Secretary
P. O. Box 188
San Dimas, California

California Water & Telephone Company
By /s/ W. J. Hays
Its Vice President
2020 Santa Monica Blvd.
Santa Monica, California


City of Covina
By /s/ Oscar G. Yaeger
Its Mayor
City Hall
Covina, California


Covina Irrigating Company
By /s/ Verne Jobe
Its President

By /s/ Faye D. Ferguson
Its Secretary
146 East College Street
Covina, California

Cross Water Company
By /s/ John Ferrero
Its President
By /s/ H. L. Smith
Its Secretary
15825 East Main Street
La Puente, California


k;
;r
~

I
5







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Clte ts 45 Cal.lptr. 051


Attorneys
(for the respective party listed oppo-
site and to the right of the respective
attorneys listed below)-Continued


Gray & Maddox
By /s/ Frank E. Gray

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark
James A. Nicklin
City Attorney
City of El Monte
/s/ Tames A. Nicklin


Surr & Hellyer
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark
Leonard A. Shelton
/s/ Leonard A. Shelton

Surr & Hellyer
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark
Allard, Shelton & O'Connor
By /s/ L. A. Shelton

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark
Homer H. Bell
City Attorney
City of Monrovia
/s/ Homer H. Bell

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark


Signature of Stipulating Party and Its
Designation of Mailing Address-Cont'd


East Pasadena Water Company, Ltd.
By /s/ Camille A. Gamier
Its President

S By /s/ Roger G. Etter
Its Assist. Secretary
S 269 South Rosemead
Pasadena, California


City of El Monte

By /s/ Charles E. Wiggins
Its Mayor
City Hall
El Monte, California




City of Glendora
By /s/ Joe M. Finkbiner
Its Mayor
City Hall
Glendora, California


Glendora Irrigating Company
By /s/ C. F. Gordon
Its President

By /s/ O. J. Hammer
Its Secretary
224 North Michigan Avenue
Glendora, California


City of Monrovia

By /s/ Roy S. Kropke
Its Mayor
City Hall
Monrovia, California


-- ---








668 45 CALIFOI

Attorneys
(for the respective party listed oppo-
site and to the right of the respective.
attorneys listed below)-Continued

Charles R. Martin
City Attorney
City of Monterey Park
/s/ Charles R. Martin

Taylor & Smith
By /s/ Edward F. Taylor

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark



J. E. Skelton
/s/ J. E. Skelton

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

O'Melveny & Myers
By /s/ Lauren M. Wright

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark

Charles R. Martin
City Attorney
City of South Pasadena
/s/ Charles R. Martin


Surr & Hellyer
By /s/ John B. Surr
Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark


RNIA REPORTER


Signature of Stipulating Party and Its
Designation of Mailing Address-Cont'd

City of Monterey Park

By /s/ William M. Erambert
Its Mayor
City Hall
320 West Newmark Avenue
Monterey Park, California

San Gabriel County Water District
By /s/ Robert S. Brummett
Its President
By /s/ Lupie Peters
Its Secretary
829 East Las Tunas Drive
San Gabriel, California

San Gabriel Valley Water Company
By /s/ M. E. Moseley
Its President

By /s/ C. H. Palmer
Its Secretary
11142 Garvey Avenue
El Monte, California

Southern California Water Company
By /s/ Philip F. Walsh
Its President

By /s/ W. C. Welmor
Its Secretary
11911 South Vermont Avenue
Los Angeles 44, California

City of South Pasadena

By /s/ Burton E. Jones
Its Mayor
825 Mission Street
South Pasadena, California







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 CaI.Rptr. 001


Attorneys
(for the respective party listed oppo-
site and to the right of the respective
attorneys listed below)-Continued

Frank E. Gray
/s/ Frank E. Gray

Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Mann
By /s/ Donald D. Stark


Hahn & Hahn
By /s/ Allyn H. Barber






Surr & Hellyer
By /s/ John B. Surr

Clayson, Stark, Rothrock & Man
By /s/ Donald D. Stark




Stearns, Gross and Moore
By /s/ Thomas B. Moore







Helm & Budinger
By /s/ Ralph B. Helm


Signature of Stipulating Party and Its
Designation of Mailing Address-Cont'd

Suburban Water Systems
By /s/ Camille A. Garnier
Its --- President

By /s/ C. H. Deitz
Its Secretary
16340 East Maplegrove Street
La Puente, California


Sunny Slope Water Company
By /s/ Robt. T. Clary
Its President
By /s/
Its Secretary
1040 El Campo Drive
Pasadena, California

Vallecito Water Company
By /s/ Camille A. Gamier
Its President
n
By /s/ Wm. Roby
Its Secretary
749 South Ninth Avenue
City of Industry, California

California Domestic Water Company
By /s/ Fred M. Anderson
Its President
By /s/ Camille A. Garnier
Its Secretary
P. O. Box 1026, Perry Annex
Whittier, California

Upper San Gabriel Valley Municipal Wa-
ter District
By /s/ Frank E. Vachon
Its President
By /s/ Howard H. Hawkins
Its Secretary
11229 East Valley Boulevard
El Monte, California












45 CALIFORNIA REPORTER



Appendix 2

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES


BOARD OF WATER COMMISSIONERS OF TIE CITY
OF LONG BEACH, a municipal corporation; CENTRAL
BASIN MUNICIPAL WATER DISTRICT, a municipal wa-
ter district; and CITY OF COMPTON, a municipal corpo-
ration,
Plaintiffs,
vs.
SAN GABRIEL VALLEY WATER COMPANY, a corpora-
tion; AZUSA AGRICULTURAL WATER COMPANY, a
corporation; AZUSA VALLEY WATER COMPANY, a cor-
poration; CALIFORNIA CITIES WATER COMPANY, a
corporation; CALIFORNIA WATER & TELEPHONE
COMPANY, a corporation; COVINA IRRIGATING COM-
PANY, a corporation; CROSS WATER COMPANY, a cor-
poration; EAST PASADENA WATER CO. LTD.,
a corporation; GLENDORA IRRIGATING COMPA-
NY, a corporation; SOUTHERN CALIFORNIA WATER
COMPANY, a corporation; SUBURBAN WATER SYS-
TEMS, a corporation; SUNNY SLOPE WATER CO., a cor-
poration; VALLECITO WATER CO., a corporation; CITY
OF ALHAMBRA, a municipal corporation; CITY OF
ARCADIA, a municipal corporation; CITY OF AZTJSA, a
municipal corporation; CITY OF COVINA, a municipal cor-
poration; CITY OF EL MONTE, a municipal corporation;
CITY OF GLENDORA, a municipal corporation; CITY OF
MONROVIA, a municipal corporation; CITY OF MON-
TEREY PARK, a municipal corporation; CITY OF SOUTH
PASADENA, a municipal corporation; BALDWIN PARK
COUNTY WATER DISTRICT, a county water district; and
SAN GABRIEL COUNTY WATER DISTRICT, a county
water district,
Defendants,
UPPER SAN GABRIEL VALLEY MUNICIPAL WATER
DISTRICT, a municipal water district, and CALIFORNIA
DOMESTIC WATER COMPANY, a corporation,
Intervenors.


NO. 722,647





JUDGMENT


The original complaint herein was filed by
Plaintiffs on May 12, 1959, and an amended
complaint was filed herein on June 8, 1961.
Each Defendant in this action filed an
answer to the amended complaint denying
the material allegations therein. Hereto-
fore, Upper San Gabriel Valley Municipal


Water District, a municipal water district,
and California Domestic Water Company,
a corporation, have intervened in the ac-
tion as Defendant. There has been filed
herein a Stipulation for Judgment signed
by all of the parties to this action.


670










CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.Ilptr. i1


After due examination and consideration
of the pleadings, said Stipulation for Judg-
ment and other documents and papers on
file herein, it appears to the Court that:
(a) In bringing and maintaining this ac-
tion, plaintiff Central Basin Municipal
Water District, a municipal water district,
has done so as a representative of and for
the benefit of all owners of water rights
within, all owners of land within, and all
hbtants of. the district, except to the
extent that defendant California Domestic
Water Company is representing itself.
(b) In intervening in this action, defend-
ant Upper San Gabriel Valley Municipal
Water District, a municipal water district,
has done so as a representative of and for
the benefit of all owners of water rights
within, all owners of land within, and all in-
habitants of, the district, except to the
extent that other Defendants who are with-
in the district are representing themselves.
(c) There is a need for a physical solu-
tion to the complex water problems which
have given rise to this action.
(d) The physical solution embodied in
this Judgment is a feasible, equitable and
just resolution of the issues presented by
the amended complaint and answers there-
to on file herein, and it will bring about a
fair division of the water supply of the
San Gabriel River System between Upper
Area and Lower Area, as those terms are
hereinafter defined.
(e) On the basis of the Stipulation for
Judgment filed herein and the consent of all
Plaintiffs and Defendants it is in the in-
terests of justice and in furtherance of the
water policy of the State of California to
proceed without trial and to make and
enter this Judgment.
Now, therefore, it is hereby ORDERED,
ADJUDGED AND DECREED:
JURISDICTION 1. The Court has
jurisdiction of the subject matter of this
action and of the Upper Area Parties and

* The map, Exhibit A, and the Engineering
Appendix referred to in paragraph 2 of the


Lower Area Parties, as those terms are
hereinafter defined.
EXHIBITS* 2. The following Ex-
hibits marked A and B, are attached to this
Judgment and made a part hereof:
(a) Exhibit A-Map entitled "Rio Hondo
and San Gabriel River in Vicinity of
Whittier Narrows Dam".
(b) Exhibit B-Engineering Appendix.
DEFINITIONS 3. As used in this
Judgment, the following terms shall have
the meanings assigned to them:
(a) Central Municipal-Central Basin
Municipal Water District.
(b) Upper District-Upper San Gabriel
Valley Municipal Water District.
(c) Lower Area Parties-the Plaintiffs,
and all persons, firms and corporations,
public or private, who are represented
by Central Municipal.
(d) Upper Area Parties-the Defend-
ants, and all persons, firms and corpora-
tions, public or private, who are repre-
sented by Upper District.
(e) Upper Area-the area (exclusive of
the Raymond Basin and the portion of
San Gabriel Mountains tributary thereto)
wherein surface and subsurface waters
are tributary to Whittier Narrows up-
stream from the common boundary of
Upper District and Central Municipal
through Whittier Narrows.
(f) Lower Area-the area which lies
downstream from the common boundary
of Central Municipal and Upper District
through Whittier Narrows and which is
included within the incorporated limits
of the Plaintiffs.
(g) Whittier Narrows-a gap between
Merced Hills and Puente Hills shown on
Exhibit A.
(h) Montebello Forebay-the area desig-
nated as such on Exhibit A.
(i) Export to Lower Area-water di-
verted from surface streams in Upper

proposed judgment are not included in
this Appendix 2.


- 1.s







45 CALIFORNIA REPORTER


Area or pumped or developed from un-
derground sources in Upper Area, and
in either case conveyed by conduit
through Whittier Narrows.
(j) Subsurface flow-all water which
passes as ground water through Whit-
tier Narrows at the "narrowest section"
as shown on Exhibit A.
(k) Surface flow-all water other than
Export to Lower Area and Subsurface
Flow, which passes from Upper Area to
Lower Area through Whittier Narrows.
(1) Usable Water-all Surface Flow,
Subsurface Flow and Export Flow and
Export to Lower Area, but excluding:
(1) that portion of Surface Flow, if
any, which crosses the southerly bound-
ary of Montebello Forebay as surface
runoff less the amount of Surface
Flow which has been caused to flow
out of Montebello Forebay as surface
runoff by any spreading of water in
Montebello Forebay by or on behalf of
Lower Area Parties, or any of them;
(2) water imported by or on behalf of
Lower Area Parties from outside of
the watershed of the San Gabriel River
System;
(3) Reclaimed Water, as defined in
subparagraph (o) herein, provided,
however, that Reclaimed Water (other
than that reclaimed by or on behalf of
Lower Area Parties) which is per-
colated and commingled with ground
water in Upper Area shall be deemed
Subsurface Flow, Surface Flow, or
SExport to Lower Area as the case may
be, when and if it passes through Whit-
tier Narrows;
(4) that portion, if any, of Export to
Lower Area which in any Water Year
after September 30, 1966, exceeds 23,-
395 acre-feet;
(5) Make-up Water, as defined in sub-
paragraph (m) herein; and
(6) any water whether flowing on the
surface or beneath the surface of the
ground which has passed any of the
points of surface measurement in


Whittier Narrows shown on Exhi;tl
B and prior to its passing from Ulp
Area to Lower Area is interceltr
and returned upstream by conduit ~
otherwise so that it could again p
any such points of measurement.
(m) Make-up Water-water of usal,.,
quality for ground water recharge which,
is either (a) required to be delivered t,
Lower Area under terms of paragraph t
of this Judgment, or (b) designated EL
the delivering party as a delivery t,
Lower Aria in advance satisfaction of
some possible future delivery requirement
under terms of paragraph 5 of this Judg.
ment.
(n) Water Year-October 1 through the
following September 30.
(o) Reclaimed Water-water reclaimed
from sewage generated in the watershed
of the San Gabriel River System above
Whittier Narrows.
DECLARATION OF RIGHT 4.
Lower Area Parties have rights in the
water supply of the San Gabriel River Sys.
tem. The nature and extent of such rights
is not known; however, Lower Area Par-
ties and all other persons downstream from
Whittier Narrows who receive water from
the San Gabriel River System or have
rights in and to such water, shall have, as
against Upper Area Parties and all other
pumpers of water in the San Gabriel Valley,
a right to receive from Upper Area an
average annual usable supply of ninety-
eight thousand four hundred fifteen (98,-
415) acre-feet of water over a long-term
period of normal rainfall derived as set
forth in Exhibit B, consisting of Surface
Flow, Subsurface Flow, Export to Lower
Area and Make-up Water. If in the future
a court of competent jurisdiction shall de-
cree that any person downstream from
Whittier Narrows within Central and West
Basin Water Replenishment District who
is not bound by this Judgment, shall have,
as against Upper Area Parties and sub-
stantially all other pumpers in the San
Gabriel Valley, a right to receive from Up-
per Area a stated amount of usable supply











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 40 Cal.Rptr. 051


consisting of Surface Flow, Subsurface
Flow, Export to Lower Area or Make-up
Water, which right arose out of and is
based upon the ownership of land or the
production of water downstream from
Whittier Narrows and within Central and
West Basin Water Replenishment Dis-
trict, then and in that event the stated
amount of such right so decreed shall not
increase the declared right as set forth in
this paragraph 4; and the receipt of water
from Upper Area by such person in such
stated amount or portion thereof, consisting
of Surface Flow, Subsurface Flow, Export
to Lower Area or Make-up Water, shall be
deemed a partial satisfaction of such de-
clared right.
PHYSICAL SOLUTION (5) In rec-
ognition of the complexities of annual sup-
ply and demand and variations in the
components thereof, the Court hereby de-
clares the following physical solution to be
a fair and equitable basis for satisfaction
of the declared right set forth in para-
graph 4 hereof. Compliance with this para-
graph 5 shall constitute full and complete
satisfaction of said declared right.
AVERAGE ANNUAL ENTITLEMENT (a) It
is determined that the amount of Lower
Area average annual entitlement to Usable
45 Cal.Rptr.-43


Water is ninety-eight thousand four hun-
dred fifteen (98,415) acre-feet.
(b) The outflow of water from Upper
Area through Whittier Narrows to Lower
Area has varied from year to year and will
vary from year to year in the future de-
pending on changing conditions of supply
and demand; and, as to any Water Year
the average annual rainfall for the San
Gabriel Valley during the ten (10) consecu-
tive Water Years ending with that Water
Year is a reasonable basis for determining
the entitlement of Lower Area to Usable
Water for such Water Year.
DETERMINATION OF RAINFALL (c) The
rainfall in each Water Year for the San
Gabriel Valley shall be determined by ap-
plication of the procedures described in Ex-
hibit B.
RAINFALL ADJUSTMENT TABLE (d) The
quantity of water which Lower Area is en,
titled to receive in any Water Year (here.
inafter called Lower Area Annual Entitle-
ment) shall be determined in accordance
with the following table, except that no de-
termination of Lower Area Annual Entitle-
ment shall be made for the last year of any
Long-term Accounting Period as hereinafVt
er defined.


673









45 CALIFORNIA REPORTER


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to_ -^ -o -\ -4 CM % I

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t 0 O0 ON O =),
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DETERMINATION OF ACCRUED DEBIT OR
CREDIT (e) The difference between the ag-
gregate water entitlements determined as
provided in this judgment and the aggre-
gate of Usable Water and delivered Make-
up Water shall be computed as of the end
of each Water Year. Any excess of water
entitlements over the quantity of Usable


Water and Make-up Water received by
Lower Area after September 30, 1963, is
hereinafter referred to as Accrued Debit of
Upper Area. Any excess of Usable Water
and Make-up Water received by Lower
Area after September 30, 1963, over water
entitlements, is hereinafter referred to as
Accrued Credit of Upper Area.


674


z .111





Z q
M ?>







3P4




.< Z P
g 0.0
0- V),-











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.Iptr. 051


AccRUvD DEItT (f) If at the end of any
Water Year it is determined pursuant to
subpagrgraph (c) of this paragraph 5 that
there is an Accrued Debit of Upper Area,
then Upper District shall cause Make-up
Water to be delivered to Lower Area dur-
ing the following Water Year in an amount
not less than the sum of (1) one-third of
such Accrued Debit of Upper Area, and (2)
that portion, if any, of such Accrued Debit
of Upper Area over 25,000 acre-feet which
remains after deducting said one-third. If
Upper District shall fail to deliver Make-
up Water as next above provided and Plain-
tiffs shall have diligently pursued their le-
gal and equitable remedies to cause Upper
District to so deliver, and either: (1) it
shall be finally adjudged that Upper Dis-
trict is not obligated to so deliver, or (2)
it shall appear that Upper District will not
thereafter deliver Make-up Water, then De-
fendants and any successor or successors in
interest by title to a Defendant's water right
in Upper Area shall be obligated to so de-
liver Make-up Water. The provisions of
this paragraph are subject to the provisions
of paragraph 5(h) below.
AcCRUED CREDIT (g) If at the end of
any Water Year it is determined pursuant
to subparagraph (e) of this paragraph 5
that there is an Accrued Credit of Upper
Area, then there shall be no obligation to
deliver Make-up Water to Lower Area dur-
ing the following Water Year.
LONG-TERM ACCOUNTING (h) Following
September 30, 1963, a Long-term Account-
ing shall be made from time to time but not
sooner than at the end of 15 Water Years,
nor later than 25 Water Years after Sep-
tember 30, 1963, or after the last such ac-
counting, whichever is later. A Long-term
Accounting shall be made sooner than said
25-year period whenever the average an-
nual rainfall in the San Gabriel Valley for
a period of 15 Water Years or more after
September 30, 1963, or after the last such
accounting, whichever is later, is at least
18 inches but not more than 19 inches.
In making such Long-term Accounting
for any such period (herein called Long-


term Accounting Period), the aggregate of
all Usable Water and Make-up Water re-
ceived by Lower Area during such period
shall be determined and (a) there shall be
deducted from said aggregate the amount of
Make-up Water, if any, delivered during
such period by reason of the existence of
an Accrued Debit of Upper Area at the
end of the immediately preceding Long-
term Accounting Period, or (b) there shall
be added to said aggregate the amount of
any Accrued Credit of Upper Area deter-
mined to exist at the end of the immediately
preceding Long-term Accounting Period.
The net aggregate amount of Usable Water
and Make-up Water so computed shall be
compared to the result to be obtained by (1)
multiplying the 98,415 acre-feet of water to
be received by Lower Area as its average
annual usable supply by the number of Wa-
ter Years in the Long-term Accounting Pe-
riod, and (2) adjusting the product by the
percentage by which the average annual
rainfall (to the nearest one hundredth of an
inch) for the Long-term Accounting Pe-
riod involved exceeds or is less than 18.52
inches. (i. e.:

98.415 x (number of Water Years in
Period) x (average rainfall for the Period).)
18.52

If as a result of such comparison it is
determined that there is a deficiency in
the net aggregate amount of Usable Water
and Make-up Water received during the
Long-term Accounting Period, then such
deficiency shall be compensated in the fol-
lowing three Water Years by delivery of
Make-up Water to Lower Area in an
amount not less than one-third of such de-
ficiency in the first following Water Year
and not less than one-half of the balance
within the second following Water Year.
If it is determined as a result of such com-
parison that there is an excess of net ag-
gregate Usable Water and Make-up Water
received, then the amount of such excess
shall be carried forward as an Accrued
Credit of Upper Area.


675


-c-"61 -~








45 CALIFORNIA REPORTER


MAKE-Ur WATER DELIVERY (i) Make-
up Water may be delivered by any one or
more of the following means:
Surface Flow Delivery (1) By causing
water other than Reclaimed Water to
flow on the surface into Montcbcllo Fore-
bay by any means and from any source,
provided that such deliveries shall be at
such rates or flows and at such times as
may be scheduled by the Watermaster.
Reclaimed Water Credit (2) By paying
to Central Municipal for the benefit of all
Lower Area Parties the total amount or
any portion of the total amount which
Central and West Basin Water Replenish-
ment District or any Plaintiff shall have
expended in reclaiming water or for the
purchase of Reclaimed Water in the pre-
ceding Water Year, and which water
when so reclaimed or purchased shall
have been passed through Whittier Nar-
rows to Lower Area. Upon written re-
quest made by Upper District not later
than three months after the end of a
Water Year, Central Municipal shall give
a written notice to Upper District and the
Watermaster of the total number of acre-
feet of such Reclaimed Water so reclaim-
ed or purchased during the preceding Wa-
ter Year and of the cost per acre-foot
therefore at the existing Whittier Nar-
rows Water Reclamation Plant for recla-
mation of waste water, and at any future
additions thereto, and payment therefore at
said cost, or costs, may be made not later
than one year after receipt of such writ-
ten notice. Such payment shall be made
for the total production of Reclaimed
Water from the existing plant in the pre-
ceding Water Year before Upper District
shall be entitled to make payment for all,
or any portion of, Reclaimed Water pro-
duced in that year by any future addition
to that plant. Such payment by Upper
District on behalf of Defendants shall be
deemed a delivery of Make-up Water
equal to the quantity of Reclaimed Water
for which the expenditure of a like sum
would have paid at the cost, or costs, per
acre-foot so paid for such Reclaimed Wa-


ter. In no event, however, shall any pay.
ment by Upper District under this sub.
paragraph (i) (2) be deemed a delivery
of Make-up Water in excess of 14,735
acre-feet in any Water Year during
which the amount of Make-up Water re-
quired to be furnished by Upper Area is
available to it at ground water replenish.
ment rates for delivery to Lower Area,
except with the prior written consent of
Plaintiffs. Except with the consent of
Plaintiffs, nq payment by Upper District
under this subparagraph (i) (2) may be
designated as advance satisfaction of
some possible future delivery require.
ment.
Direct Delivery (3) By delivering, or
causing to be delivered, water to any of
Lower Area Parties with consent of
Plaintiffs for use in Lower Area.
WATER RIGHTS BOUND (j) It is further
determined and adjudicated that the obli-
gations provided above in subparagraphs
(f) and (h) of this paragraph 5 for each
Defendant shall constitute and be a servi-
tude upon the existing water rights of each
Defendant in and to the water supply of the
San Gabriel River System upstream from
Lower Area and shall run with and for-
ever bind said water rights for the benefit
of the water rights of Lower Area Parties.
TRANSFER OF WATER RIGHTS (k) If any
Defendant, other than Upper District, shall
desire to transfer all or any of its said wa-
ter rights to a person, firm or corporation,
public or private, who or which is not then
bound by this Judgment as a Defendant,
such Defendant shall as a condition to be-
ing discharged as hereinafter provided
cause such transferee to appear in this ac-
tion and file a valid and effective express
assumption of the obligations imposed upon
such Defendant under this Judgment as to
such transferred water rights. Such ap-
pearance and assumption of obligations
shall include the filing of a designation of
the address to which shall be mailed all
notices, requests, objections, reports and
other papers permitted or required by the
terms of this Judgment.


676







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite ns 45 Cul.Rptr. 001


If any I)Defendant shall have transferred
all of its said water rights and each trans-
feree not theretofore bound by this Judg-
ment as a Defendant shall have appeared
in this action and filed a valid and effec-
tive express assumption of the obligations
imposed upon such Defendant under this
Judgment as to such transferred water
rights, such transferring Defendant shall
thereupon be discharged from all obliga-
tions hereunder. If any Defendant other
than Upper District shall cease to own
any rights in and to the water supply of
the San Gabriel River System upstream
from Lower Area, and shall have caused
the appearance and assumption provided
for in the third preceding sentence with re-
spect to each voluntary transfer, then upon
application to this Court and after notice
and hearing such Defendant shall thereupon
be relieved and discharged from all further
obligations hereunder. Any such discharge
of any Defendant hereunder shall not im-
pair the aggregate rights of Lower Area
Parties or the responsibility hereunder of
the remaining Defendants or any of the
successors.
WATERMASTER APPOINTMENT 6.
A Watermaster comprised of three persons
to be nominated as hereinafter provided
shall be appointed by and serve at the pleas-
ure of and until further order of this Court.
One shall be a representative of Upper
Area Parties nominated by and through
Upper District, one shall be a representative
of Lower Area Parties nominated by and
through Central Municipal, and one shall
be jointly nominated by Upper District and
Central Municipal. If a dispute arises in
choosing the joint appointee, the Court shall
make the appointment. If Central Munici-
pal or Upper District shall at any time or
times nominate a substitute appointee in
place of the appointee last appointed to
represent Lower Area Parties, in the case
of Central Municipal, or to represent Upper
Area Parties, in the case of Upper District,
or if Central Municipal and Upper District
shall at any time or times jointly nominate
a substitute appointee in place of the joint


appointee last appointed, such substitute
appointee shall be appointed by the Court
in lieu of such last appointee or joint
appointee. Each such nomination shall be
made in writing, served upon the other
parties to this action and filed with the
Court. The Watermaster when so appointed
shall administer and enforce the provisions
of this Judgment and the instructions and
subsequent orders of this Court.
POWERS AND DUTIES 7. The Water-
master shall have the following powers and
duties and shall take all steps necessary to
make the following determinations for each
Water Year promptly after the end of such
Water Year:
(a) the amount of Surface Flow,
(b) the amount of Subsurface Flow,
(c) the amount of Export to Lower
Area,
(d) the amount of water which passed
as Surface Flow or Subsurface Flow
across the boundary between Upper Area
and Lower Area through Whittier Nar-
rows and which was imported by or on
behalf of Lower Area Parties from out-
side of the watershed of the San Gabriel
River System above Whittier Narrows,
(e) the amount and quality of Reclaimed
Water reclaimed by or on behalf of Lower
Area,
(f) the total amount of Make-up Water
delivered to Lower Area, together with
the respective amounts delivered by each
method specified in paragraph 5 of this
Judgment,
(g) the amount of Usuable Water re-
ceived by Lower Area,
(h) the amount of local storm inflow,
originating in Lower Area, to the channel
of each of Rio Hondo and San Gabriel
River within Montebello Forebay,
(i) the surface outflow from Montebello
Forebay in the channel of each of the
Rio Hondo and San Gabriel River,
(j) the number of inches of depth of
average rainfall in the San Gabriel Val-
ley,


677


I -













678. 45 CALIFORN:

r (k) the average annual rainfall in the
San Gabriel Valley for the ten consecu-
tive Water Years just ended,
(I) Lowcr Area Annual Entitlement or
the entitlement for the Long-term Ac-
counting Period, determined pursuant to
subparagraph (d) or (h), respectively, of
paragraph 5 of this Judgment,
(m) Accrued Debit of Upper Area, if
any, or Accrued Credit of Upper Area, if
any, as it exists at the end of such Water
Year, and
(n) the amount, if any, of Make-up
Water which Upper District is obligated
to deliver during the following Water
Year.
DETERMINATIONS TO BE BASED
ON EXHIBIT B 8. Each of the above re-
quired determinations shall be based on and
conform to the procedures specified in this
Judgment and in Exhibit B insofar as said
exhibit provides a procedure.
REPORTS MEASUREMENTS AND
DATA 9. The Watermaster shall report
to the Court and to each party in writing
at the same time and not more than five
, months after the end of each Water Year
the, determinations required by paragraph
7 above.
The Watermaster shall cause to be in-
stalled and maintained in good working
order such measuring devices in Whittier
Narrows and elsewhere as are necessary
or required and not otherwise available
for the making of the determinations re-
quired by paragraph 7 above.
The Watermaster shall collect and -as-
semble from each of the parties, and the
parties shall make available to the Water-
master, such records, reports and other
data as may reasonably be required in the
making of the determinations required of
the Watermaster under paragraph 7 above.
All records, reports and data received,
maintained or compiled by the Watermaster
shall be open to inspection by any party or
its representative.
OBJECTIONS 10. Any party who ob-
jects to any determination made by the Wa-


[A REPORTER


ternaster pursuant to paragralph 7 abovr
may make such objection in writing to tile
Watermaster within thirty (30) days after
the Waternaster gives the required writ.
ten notice of such ldtermination. Within
thirty (30) days after expiration of thl
time within which objection may be IImade
to such determination, the Watermiastc r
shall consider all objections thereto and
shall amend, modify or affirm the deter-
mination and give notice thereof at the
same time to all parties and shall file a copy
of such final determination with the Court.
If the Watermaster denies any objection
in whole or in part, the party whose objec-
tion was so denied may within thirty (30)
days after service of the final determina-
tion upon it, make written objection to such
denial by filing its objections with the
Court after first mailing a copy of such
objections to the Watermaster and to each
party, and such party shall bring its objec-
tions on for hearing before the Court upon
notice and motion and at such time as the
Court may direct. If the Watermaster
shall change or modify any determination,
then any party may within fifteen (15)
days after service of such final determina-
tion upon it object to such change or modi-
fication by following the procedure pre-
scribed above in the case of a denial of an
objection to the first determination. If
objection to a final determination is filed
with the Court as herein provided and
brought on for hearing, then such final de-
termination may be confirmed or modified
in whole or in part as the Court may deem
proper.
CHANGE IN METHOD OF MEAS-
UREMENT 11. If the Watermaster
shall deem it advisable to make a change
in the method of making any measure-
ment required under the terms of this
Judgment, the Watermaster shall notify
all parties of such proposed change, and
if within sixty (60) days of such notifica-
tion no party shall file its written objec-
tions to such change with the Watermas-
ter, the Watermaster may put such pro-
posed change into effect. If, however,











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45 Cal.ltptr. 051


any party files its written objection to the
proposed change, it shall by notice of mo-
tion filed not later than fifteen (15) days
after the expiration of said 60-day period
and served on the Watcrmaster and all
parties bring its objection on for hearing
before the Court at such time as the Court
may direct, and the Court shall rule on
whether the Watermaster may make such
proposed change.
BUDGET 12. In addition to the above-
specified administrative powers and duties,
the Watermaster shall prepare a tenta-
tive budget for each Water Year, stat-
ing the estimated expense for discharging
the duties of the Watermaster set forth
in this Judgment. The Watermaster shall
mail a copy of the tentative budget to each
of the parties at the same time at least
sixty (60) days before the beginning of
each Water Year. However, with respect
to the first Water Year following the entry
of this Judgment, the tentative budget shall
be mailed not later than one hundred and
twenty (120) days from the entry of this
Judgment. If any party has an objection
to a tentative budget, or any suggestions
with respect thereto, that party shall pre-
sent the same in writing to the Water-
master within fifteen (15) days after serv-
ice of the tentative budget upon it. If
no objections are received, the tentative
budget shall become the final budget. If
objections to the tentative budget are re-
ceived, the Watermaster shall, within fif-
teen (15) days after the expiration of the
time for presenting objections, consider all
such objections, prepare a final budget, and
mail a copy thereof to each party, together
with a statement of the amount assessed,
if any, to each party, computed as provided
in paragraph 13. If the Watermaster de-
nies any objection in whole or in part, the
party whose objection was so denied may,
within fifteen (15) days after service of
the final budget upon it, make written ob-
jection to such denial by filing its objec-
tions vith the Court after first mailing
a.-copy of such objections to each party,
aand such party shall bring its objections


on for hearing before the Court upon no-
tice and motion and at such time as the
Court may direct. If the Watermaster
makes a change in the tentative budget,
then any party may within fifteen (15)
days after service of the final budget upon
it object to any such change by following
the procedure prescribed above in the case
of a denial of an objection to the tenta-
tive budget. If objection to the final budget
is filed with the Court as herein provided
and brought on for hearing, then such
final budget may be confirmed or adjusted
in whole or part as the Court may.deem
proper.
FEES AND EXPENSES 13. The
fees, compensation and -expenses of the
Watermaster hereunder shall be borne by
the parties in the following proportions:
50% by Upper District, 41.2% by Central
Municipal, 7.125% by the City of Long
Beach, and 1.675% by the City of Comp-
ton, or such other division among, the
Plaintiffs as they may agree upon in writ-
ing and file with the Watermaster.
Payment of the amount assessed to a
party, whether or not subject to adjust-
ment by the Court as provided in para-
graph 12, shall be paid on or prior to the
beginning of the Water Year to which
the final budget and statement of assessed
costs is applicable. If such payment by
any party is not made on or before said
date, the Watermaster shall add a penalty
of 5% thereof to such party's statement.
Payment required of any party hereunder
may be enforced by execution issued out
of this Court, or as may be provided by
order hereinafter made by this Court. All
such payments and penalties received by
the Watermaster shall be expended, for
the administration of this Judgment. Any
money remaining at the end of any Water
Year shall be available for use in the fol-
lowing Water Year.:
SUCCESSOR OF UPPER DISTRICT
14. If a public agency or district shill be
formed hereafter which shall include the
Present area of Upper 'District and ;shall
have ability equal to or greater than that


679








45 CALIFOR)NIA REPORTER


which Upper District now has to perform
the obligations under this Judgment, and
shall appear in this action and file a valid
and effective assumption of such obliga-
tions, then Upper District upon applica-
tion to this Court, and after notice and
hearing, shall thereupon be relieved and
discharged from all further obligations
hereunder.
CONTINUING JURISDICTION OF
THE COURT 15. Full jurisdiction, pow-
er and authority is retained and reserved
by the Court for the purpose of enabling
the Court upon application of any party
by motion and upon at least thirty (30)
days notice thereof, and after hearing
thereon (i) to make such further or sup-
plemental orders or directions as may be
necessary or appropriate for the construc-
tion, enforcement or carrying out of this
Judgment, and (ii) to modify, amend or
amplify any of the provisions of this Judg-
ment whenever substantial changes or de-
velopments affecting the physical, hydro-
logical or other conditions dealt with here-
in may, in the Court's opinion, justify or
require such modification, amendment or
amplification.
If at any time Plaintiffs and at least
two-thirds of the Defendants including
any two of the cities of Alhambra, Azusa
and Monterey Park, shall file with the
Court a written stipulation (i) that hence-
forth in determining any one or more of
the component parts of Usable Water re-
ceived by Lower Area in any Water Year,
the Watermaster shall not use the method
specified in this Judgment but shall use
instead a new, different or altered method
as specified and described in such stipula-
tion, and (ii) that such new, different or
altered method or methods shall be applied
to redetermine the average annual amount
of Usable Surface Flow, Subsurface Flow
and Export to Lower Area which Lower
Area received each Water Year during the
period October 1, 1934 to September 30,
1959, referred to as the base period, and
that on the basis of such redetermination
the Court may modify paragraphs 4 and


5 of this Judgment to establish a new and
different water entitlement and yearly ad.
justment thereto which shall thereafter con.
trol, then and in that event, after hearing
pursuant to motion and notice to all par.
ties, held at such time as the Court 1ma
direct, the Court may deny the motion or
it may grant it and (a) approve the future
use of the stipulated new, different or al-
tered method or methods, by the Water.
master, and' (b) by use of the stipulated
new, different or altered method or meth-
ods, redetermine the average annual amount
of Usable Surface Flow, Subsurface Flow
and Export to Lower Area received each
Water Year during the base period, and
on the basis thereof modify paragraphs 4
and 5 of this Judgment to provide for a
new and different water entitlement and
yearly adjustment thereto, which modifica-
tions shall be effective and control com-
mencing with the Water Year following the
entry of the order so modifying paragraphs
4 and 5.
REPORT OF TRANSFER OF WA-
TER RIGHTS 16. Every transfer of
any of those water rights of Defendants
which are the subject of Paragraph 5(j)
of this Judgment, whether such transfer
is voluntary or involuntary, shall be re-
ported promptly in writing by the trans-
feror to the Watermaster; and the Water-
master shall give prompt written notice of
such transfer to each party and to each
transferee involved in every other trans-
fer of any of those water rights. -. uch
report by the transferor and notice by the
Watermaster shall contain the following
information as to each such transfer:
(a) The identity of the transferor;
(b) The identity of the transferee;
(c) The effective date of the transfer;
(d) A brief description of the document
by which such transfer is made, and the
recording data, if any;
(e) A statement as to whether the trans-
fer was voluntary or involuntary;
(f) A statement whether or not after
such transfer the transferor still has or


680







CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 40 Catl.ptr. o51


claims to have any of thc water rights
which are the subject of Paragraph 5(j)
of this Judgment.
NOTICES 17. All notices, requests,
objections, reports and other papers per-
mitted or required by the terms of this
Judgment shall be given or made by writ-
ten document and shall be served by mail
on each party and on each transferee of
water rights who has appeared and filed
the assumption of obligations required by
paragraph 5(k) of this Judgment, and
where required or appropriate, on the Wa-
termaster. For all purposes of this para-
graph the mailing address of each party
shall be that set forth below its signature
to the Stipulation for Judgment, and the
mailing address of each transferee of wa-
ter rights shall be that set forth in the
appearance and assumption of obligations
required by paragraph 5(k) of this Judg-
ment, until changed as provided below. No
further notice of any kind as to any matter
arising hereunder, including notice to at-
torneys of record for any party or such
transferee, need be given, made or served.
If any party or any such transferee of
water rights shall desire to change its des-
ignation of mailing address, it shall file a
written notice of such change with the clerk
of this court and shall serve a copy there-
of by mail on the Watermaster. Upon the
receipt of any such notice the Watermaster
shall promptly give written notice thereof
to each party and to each transferee of
water rights.
EFFECTIVE DATE 18. The rights
decreed and the obligations imposed by
this Judgment shall be effective October
1, 1963, and shall accrue from that date.
COSTS 19. None of the parties shall
recover any costs from any other party.
Dated: 1965.
Judge

Appendix 3
REIMBURSEMENT CONTRACT
THIS CONTRACT is made by and be-
tween UPPER SAN GABRIEL VALLEY
MUNICIPAL WATER DISTRICT, here-
45 Cal.Rptr.-43V'/


in called "Upper District", and the cities of
ALIAMBRA, ARCADIA, AZUSA, CO-
VINA, EL MONTE, GLENDORA, MON-
TEREY PARK, MONROVIA, SOUTH
PASADENA, and WHITITER [sic];
BALDWIN PARK COUNTY WATER
DISTRICT, and SAN GABRIEL COUN-
TY WATER DISTRICT; AZUSA AG-
RICULTURAL WATER COMPANY,
AZUSA VALLEY WATER COMPANY,
CALIFORNIA CITIES WATER COM-
PANY, CALIFORNIA DOMESTIC WA-
TER COMPANY, CALIFORNIA WA-
TER & TELEPHONE COMPANY,
COVINA IRRIGATING COMPANY,
CROSS WATER COMPANY, EAST
PASADENA WATER COMPANY,
LTD., GLENDORA IRRIGATING COM-
PANY, SAN GABRIEL VALLEY WA-
TER COMPANY, SOUTHERN CAL-
IFORNIA WATER COMPANY, SUB-
URBAN WATER SYSTEMS, SUNNY-
SLOPE WATER COMPANY, and
VALLECITO WATER COMPANY,
corporations, herein collectively called
"Pumpers."

RECITALS
1. The Action. In the matter of Board
of Water Commissioners of the City of
Long Beach, et al. v. San Gabriel Valley
Water Company, et al., (L. A. Superior
Court No. 722,647) the water rights of
substantially all major water producers in
the main San Gabriel Valley are sought
to be restricted.
2. Judgment. The parties named above,
except City of Whittier, are concurrently
executing a Stipulation that a Judgment
substantially in the form annexed hereto
shall be rendered and it is anticipated that
such Judgment will be rendered in the ac-
tion.
3. Public Interest in Settlemnct. It is
in the best interests of the Pumpers and in
the best interests of the water users and
taxpayers within the corporate boundaries
of those Pumpers which are public agencies,
of the consumers of those Pumpers which
are utilities or mutual water companies,
and of all residents and taxpayers of Upper


ab~








45 CALIFORNIA REPORTER


District, that said action be settled and
disposed of in accordance with the terms
of said Judgment in order to preserve the
water supplies within Upper Area.

DEFINITIONS
1. "Contract Costs"-All costs hereafter
paid by Upper District:
(a) In providing Make-up Water un-
der the terms of the judgment. In com-
puting such costs of providing Make-up
Water, any cost which Upper District
shall pay which it would have paid even
though it had not provided Make-up Wa-
ter shall be excluded; and particularly
but not exclusively, no amount which
shall be paid to The Metropolitan Water
District of Southern California as a con-
dition to any past or future annexation
shall be deemed a cost of providing
Make-up Water. Such costs may include
interest paid by Upper District upon mon-
ey borrowed for advancements made by
it or interest which would have been re-
ceiired by the District, but which it lost by
reason of making such advancements.
(b) In complying with the terms of
said judgment.
(c) In keeping the records, making the
determinations and collecting the moneys
required by the later provisions of this
contract.
2. "Assessable Pumpage"-The amount
of ground water produced in the applicable
calendar year by or on behalf of any Pump-
er by pumping or extraction thereof from
the Upper Area, including ground water
produced under rights hereafter acquired
from any source.
3. Common Terms with Judgment-All
terms specially defined in said judgment
are used herein in the sense in which they
are therein defined, and said special defini-
tions are incorporated herein by this ref-
erence.

OPERATIVE PROVISIONS
I. Consideration for Execution. The
great majority of the defendants in the
action are situated in whole or in part with-


in Upper District and pump water therein
Certain defendants, including the Cities of
Allambra, Azusa and Monterey Park, .s
well as the City of Whittier which is nt
a defendant, lie outside Upper District.
Execution of this agreement by all parties
to it is essential to induce each party hereto
to execute this agreement, and likewise.
execution of the Stipulation for Judgmentc
by all defendants in the action is necessary
to induce each party hereto to execute thiis
contract. Each party executes this contract
in consideration of its execution by the
other parties, and in consideration of the
execution of the Stipulation by the parties
thereto. Moreover, by this contract each
party other than City of Whittier waives
its right to cross-complain in the action
so as to bring City of Whittier into the
action as a party.
2. Intervention by Upper District. In
consideration of the execution of this con-
tract by Pumpers and to contribute to the
Physical solution of providing adequate
water for its inhabitants, Upper District
has intervened as a defendant in the action
and agrees to execute the stipulation for
said judgment.
3. Administration. Upper District shall
administer the provisions of this contract,
as to all Pumpers, including additional
parties hereto mentioned in Paragraph 16.
4. Covenant to Reimburse. Each Pump-
er hereby agrees to pay to Upper District
such Pumper's share of Contract Costs
allocated and determined as provided below.
5. Allocation of Costs Among Pumpers.
Pumpers agree among themselves, each for
the benefit of all other Pumpers, to share
and participate in the payment of any sums
due Upper District hereunder in such pro-
portion as the Assessable Pumpage of each
Pumper bears to the total Assessable Pump-
age of all Pumpers for the applicable period
covered by any assessment as hereinafter
provided, subject to the provisions of Para-
graphs 9 and 11 below.
6. Reports by Pumpers. Pumpers shall
file under penalty of perjury the reports


682


1











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite as 45Cal.liptr. 651


hereinafter specified in the form provided
by Upper District, as follows:
(a) Time and Procedure for Filing.
Each year, on or before March 1, each
Pumper shall file with Upper District a
written report of its extractions of water
from Upper Area for the preceding
calendar year containing the information
set forth in subparagraph (b) of this
paragraph.
(b) Contents of the Report. Such
annual reports to Upper District shall
set forth:
(1) The name and address of the
Pumper; and
(2) The number of acre feet of
water which was pumped or extracted
from Upper Area by or on behalf of
the Pumper during the calendar year
covered.
(c) Determination in Lieu of Report.
In the event any Pumper fails to so file
such report, Upper District shall make a
determination of the Assessable Pumpage
of such Pumper, which determination,
subject to the provisions of Paragraph 9
below, shall be final and binding.
7. Notice of Assessment. On or before
June 1, of each year, Upper District shall
serve a Notice of Assessment on each
Pumper covering the preceding calendar
year which will contain a statement of:
(a) The amount of Assessable Pump-
age by each Pumper;
(b) A detailed statement of Contract
'costs during the preceding calendar year,
if any; and
(c) A statement of the amount of such
Contract Costs which are assessable to
and payable by the Pumper to whom such
notice is sent.
8. Payment-Delinquency and Default.
All assessments herein provided for shall be
due and payable on the following July 31.
In the'event of nonpayment of any assess-
ment, Upper District may bring an action
and shall have the right to recover such
assessment, together with interest thereon
at the rate of 7% per annum from the date


of delinquency and costs of suit, including
any reasonable attorneys' fees incurtred.
If, after due diligence, Upper District is
unable to collect a Pumper's allocated cost,
such uncollectible amount (including in-
terest, costs and attorneys' fees) shall be
prorated among and paid by the other
Pumpers in the same proportions as they
paid assessments for the year or years in
question. Said proration shall be billed
and payable with the next succeeding as-
sessment.
9. Rcdctermination of Assessable Pump-
age. Any Pumper who has paid his assess-
ment as herein provided may at any time
within 90 days after receipt of Notice of
such Assessment request a redetermination
of the Assessable Pumpage of such Pumper
or of any other Pumper or Pumpers re-
flected in such notice. Such request shall
be addressed in writing to Upper District
and shall set forth the basis of the request-
ing Pumper's belief that such data are lt-
correct. Upon the receipt of any such
request, the following procedures shall be
undertaken by Upper District: : i
(a) Notice of Request for Redeter-
mination. Upper District shall forthwith
notify in writing any Pumper whose
Assessable Pumpage has been questioned,
of the fact of such request and the name
of the requesting Pumper. Notice shall
further be sent to all Pumpers that pro-
cedures will be undertaken pursuant to
this paragraph, and shall state briefly the
issues to be determined.
(b) Availability of Records.' Subse-
quent to such notice, the records of the
Pumper whose Assessable Pumpage is
subject to a request for redetermination
shall be made available at reasonable
hours and upon reasonable demand to
Upper District, insofar as such records
are relevant to a determination of the
Assessable Pumpage of the Pumper dur-
ing the period involved.
(c) Investigation and Notice of Hear-
ing. Upper District shall conduct an in-
vestigation and shall by written decision
served on all Pumpers redetermine or


'683


~g~bll I I -~ I I I- I







45 CALIFORNIA REPORTER


affirm such Assessable Pumpage. Up-
per District may at its option set a date
for hearing. In such event, at least ten
days' notice in writing of said hearing
date shall be given to all Pumpers.
(d) Conduct of Hearing and Decision.
If hearing be held, Upper District shall
not be bound therein by strict rules of
evidence, but may rely on any evidence
which it deems of probative value. Any
Pumper may present evidence and argu-
ments threat. The written decision of
Upper District, with or without such
hearing, shall be served on all Pumpers
and shall be conclusive for purposes of
this contract, unless said issue is sub-
mitted to a court of competent jurisdic-
tion within 90 days from notice of such
decision.
(e) Reallocation of Contract Costs.
If Assessable Pumpage is modified by
any such decision, Contract Costs shall
be reallocated in accordance therewith.
Said reallocation shall be billed and pay-
able with the next succeeding assessment.
10. Water Rights Unaffected. This
contract relates solely to the equitable al-
location of Contract Costs and does not in-
volve or constitute an admission or agree-
ment as to the water rights of any Pumper.
Execution of this contract or of the said
Stipulation for Judgment shall not prevent
any party hereto from bringing or main-
taining any action or proceeding to deter-
mine rights to pump, extract or store water,
or to limit or curtail any pumping, extrac-
tion or storage of water in or from Upper
Area or elsewhere, except as limited by
Paragraphs 1 and 16 of the Operative Pro-
visions hereof.
11. Changed Conditions. It is recog-
nized that conditions in Upper Area may
hereafter change to such an extent that it
may become equitable to modify either the
total obligation of Pumpers to Upper Dis-
trict hereunder or the allocation of Con-
tract Costs. While this contract is entered
into to assure Upper District of reimburse-
ment of an amount up to its entire Contract
Costs, it is not intended hereby, and this


contract shall not be deemed to prevent
Upper. District from modifying and re.
during such obligation or from applying
other relief which may reduce the burden
on Pumpers. Without limitation upon the
power of Upper District to otherwise re.
duce the aggregate amount payable under
this contract, the following specific in.
stances of changed conditions are contem.
plated:
(a) Allocation of Portion of Burden
to Taxes. .It may at some future date
appear equitable and fair to allocate all
or a portion of Contract Costs to ad va-
lorem taxes or other revenues of Upper
District. In such event, Upper District
may, in the discretion of its Board of Di-
rectors, allocate all or a portion of Con-
tract Costs to such revenue sources and
the remainder, if any, thereof, shall be
payable under the terms of this contract.
(b) Imposition of Pump Tax. If Up-
per District should acquire and exercise
the power to levy a tax or assessment
upon the pumping or extraction of ground
water within its boundaries and such
power may be exercised for the purpose
of paying all or a portion of Contract
Costs as herein defined or the proceeds
of such tax or assessment may be used
to purchase Make-up Water as herein
defined, then the proceeds of such tax or
assessment shall first be used by Upper
District to apply towards the Contract
Costs otherwise payable by Pumpers with-
in Upper District or towards paying the
share of Make-up Water costs otherwise
required of said Pumpers.
(c) Adjudication of Rights. If all or
substantially all of the water rights with-
in Upper Area shall be adjudicated (in-
cluding the rights of all Pumpers), and
its natural and safe yield determined, then
this contract shall be deemed modified
to the extent that Assessable Pumpage
shall include only that amount of water
produced over and above the safe yield
portion of adjudicated rights owned by
any Pumper; provided that this subpara-
graph (c) shall not apply to any year in


684











CENTRAL BASIN MUNICIPAL WATER DISTRICT v. FOSSETTE
Cite na 45 Cal.Iptr. 001


which the aggregate of all Assessable
Puinpage as so modified is less than 25,-
000 acre feet.
12. Effective Date. This contract shall
be effective ten (10) days after notice in
writing of execution thereof by all parties,
which notice shall be given to all Pumpers
by Upper District, but shall cease and ter-
minate on July 1, 1967, unless by said date
(a) this contract shall have been validated
as provided below, and (b) the Judgment
shall have been rendered.
13. Validation. Within four months aft-
er this contract becomes effective, a pro-
ceeding or proceedings shall be instituted by
Upper District in a court of competent ju-
risdiction by an appropriate action or ac-
tions for determination of the validity of
this contract.

14. Term. The term of this contract
shall commence upon its effective date and
continue so long as the Judgment, as enter-
ed or as modified, shall remain in effect,
subject, however, to the provisions of Para-
graph 12 above.

15. Notices. Any notice to be served
upon any party hereunder may be served
either personally or by mail. If served by
mail, such notice shall be mailed in the
County of Los Angeles, State of California,
by certified mail, postage prepaid, return
receipt requested, or by registered mail, and
shall be addressed to the party to be served
at its address as set forth below, or (in the
case of Upper District) at such other ad-
dress as it may have last specified in writing
to the Pumper or Pumpers involved for the
service of notices hereunder, or (in the case
of a Pumper) at such other address as it
may have last specified in writing to Upper
District for the service of notices hereun-
der. Any notice so served by mail shall be
deemed to have been served upon the first
business day (excluding Saturdays, Sun-
days and holidays) after such mailing.


16. Additional Parties. In addition to
Pumpers and their successors and assigns
referred to in Paragraph 17 below, any oth-
er person or entity who or which shall pump
or extract water in or from Upper Area
(herein referred to as an "additional
party"), may become a party to this con-
tract, provided (a) Upper District shall
give its written consent thereto, and (b) no
Pumper or additional party shall serve up-
on Upper District its written objection
thereto. If Upper District shall give its
written consent to execution of this contract
by an applying additional party, it shall then
give written notice of such application and
consent by Upper District to each Pumper
and each additional party, and if within
thirty (30) days after such notice no Pump-
er or additional party shall have served
upon Upper District its written objection to
execution of this contract by the applying
additional party, such additional party's ap-
plication shall be deemed to have been ac-
cepted and it may become a party to this
contract by delivery to Upper District of a
duly executed instrument in writing stating
that such person or entity joins in and be-
comes a party to this contract.

Any additional party so joining shall be,
come bound by all obligations of this con-
tract, becoming due or which should be per-
formed within the terms of this contract on
and after the ensuing January 1. Such ob-
ligations include the duty to make the re-
port of extractions during the preceding
calendar year (i.e., the year in which the
contract is executed) required by Para-
graph 6, and to make the payment based
upon such extractions as required by Para-
graph 5, provided, however, that such ad-
ditional party shall have no liability under
Paragraph 8 with respect to any nonpay-
ments of an assessment based upon extrac-
tions by a Pumper or other additional party
prior to the year in which such additional
party joins in this contract.


685


C1I~BII_ aCl~aq3lb~ -- ----~- I III~Lllb ~m








45 CALIFORNIA REPORTER


As to each Pumper who executes this
contract after it becomes effective, Upper
District agrees that for a period of 90 days
after giving its said written consent, it will
bring no action against such additional
party to limit or define its rights to pump
water in or from Upper Area. Further, if
more than one such Pumper shall become
a party to this agreement at tlfe same time
as any other pumper, each will execute and
shall be deemed to have executed this con-
tract and to have joined therein in consider-
ation of the joinder in this contract by the
other or others concurrently joining in this
contract.
Any such additional party shall be deemed
a Pumper for all purposes of this agree-
ment.
17. Successors and Assigns. This con-
tract shall inure to the benefit of and bind
the successors in ownership of the water
rights of the parties. If any Pumper shall
sell or transfer or agree to sell or transfer
its water rights in Upper Area or any part
of such water rights, such Pumper shall
require as a condition of any such sale,
transfer or agreement that the purchaser or
transferee, if not already a party to this
contract, shall execute this contract and
become a party thereto. Upon a full trans-
fer of such rights by a Pumper and assump-
tion by the assignee as above provided, the
assigning Pumper shall be discharged of
obligation hereunder. If such Pumper fails
to obtain such assumption (except in cases
of a transfer under order of court or by
operation of law) the assigning Pumper
shall remain bound by the contract and pro-
duction of water by said assignee by the
exercise of the right assigned shall be treat-
ed as production by such Pumper.
18. Execution in Counterparts. This
contract may be executed in counterparts
(each counterpart being an exact copy or
duplicate of the original) and all counter-
parts collectively shall be considered as con-
stituting one complete contract.


IN WITNESS WIlERI'OF this cmltr,.
is executed by the undersigned by i it ,
authorized officer.
Dated


By


(SEAL)


By


SE KEYNUMBER SYSTEM
OTNIN=--1: I


Carolyn CHAPPELL, Plaintiff
and Appellant,
v.
Charles Alan PALMER, Donald Russell
and Irene Russell, Defendants
and Respondents.
Civ. 452.
District Court of Appeal, Fifth District,
California.
July 22, 1965.


Action by passenger against minor
driver of automobile and his parents for
injuries sustained in intersectional collision
wherein wilful misconduct of minor was
alleged. The Superior Court, Fresno Coun-
ty, Matt Goldstein, J., granted nonsuit and
plaintiff appealed. The District Court of
Appeal, Stone, J., held that whether ordi-
nary, reasonable man in position of defend-
ant motorist who was approaching cotton
gin along highway, who was aware of
danger attending gin in operation, whose
view was obstructed by tree, gin buildings
and number of cotton trailers parked in gin
yard, whose lights were effective for only
50 to 100 feet because it was dusk, and
who did not decrease his speed as he ap-
proached area of gin would have realized
that approaching such area with obstructed
visibility without slackening speed was
highly dangerous was jury question.
Reversed.


S 686




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