Title: People Ex Rel. State Water Resources Con. BD. v. Forni - Court of Appeal, First Dist. Div. 2, Jan. 23, 1976
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Title: People Ex Rel. State Water Resources Con. BD. v. Forni - Court of Appeal, First Dist. Div. 2, Jan. 23, 1976
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Publisher: 126 California Reporter
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Abstract: Jake Varn Collection - People Ex Rel. State Water Resources Con. BD. v. Forni - Court of Appeal, First Dist. Div. 2, Jan. 23, 1976 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 6
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PEOPLE EX REL. STATE WATER
54 Cal.App.3d 743 Cite as, App., 12
54 Cal.App.3d 743
SPEOPLE of the State of California ex rel.
l3 -L STATE WATER RESOURCES CONTROL
BOARD, Plaintiff and Appellant,
v.
Alfred F. FORNI et al., Defendants
and Respondents.
Civ. 37089.
Court of Appeal, First District,
Division 2.
Jan. 23, 1976.
Hearing Denied March 31, 1976.


Action was brought by the State Wa-
ter Resources Control Board for injunctive
and/or declaratory relief with respect to
the direct pumping of water by riparian
vineyardists in the Napa Valley for frost
protection of vineyards. The complaint
charged that the direct diversion of water
during frost period constituted an unrea-
sonable method of diversion since the river
flow was insufficient at that time to supply
instantaneous needs of all vineyardists en-
titled to water. The Superior Court of
Napa County, Raymond J. Sherwin, J., en-
tered a judgment denying relief and the
Board appealed. The Court of Appeal,
Kane, J., held that complaint alleging that
the direct diversion of water constituted an
unreasonable use and that threatened
shortage could be prevented by building
and utilizing winter storage or reservoirs
of water was sufficient to state a cause of
action, that constitutional provision re-
quires a reasonable use of water and that
such provision did not destroy vested prop-
erty rights of riparian owners without just
compensation.
Reversed.

I. Appeal and Error C-863
Pleading 0<343
Motion for judgment on pleadings per-
forms function of a general demurrer and
is to be treated in same fashion on appeal.
2. Pleading <=350(4, 7)
Motion for judgment on pleadings ad-
mits material facts alleged in pleadings of


RESOURCES CON. BD. v. FORNI 851
6 Cal.Rptr. 851
adverse party and issues raised by it are
legal and not factual.
3. Appeal and Error =863
Determinative issue on appeal from
judgment on pleadings is whether appel-
lant's complaint states facts sufficient to
constitute a cause of action.
4. Waters and Water Courses e=42, 79
Under constitutional amendment re-
garding water policy right to use of water
is limited to such water as shall be reason-
ably required for beneficial use to be
served and such right does not extend to
waste of water, unreasonable use, unrea-
sonable method of use or unreasonable
method of diversion of water, riparian
rights attach to so much of flow as may be
used consistently with foregoing principles.
West's Ann.Const. art. 14, 3.
5. Waters and Water Courses 2S42, 49
Overriding principle governing use of
water in California is that such use be
reasonable; what is reasonable use or rea-
sonable method of use of water is a ques-
tion of fact to be determined according to
circumstances of each particular case.
West's Ann.Const. art. 14, 3.
6. Declaratory Judgment =319
Waters and Water Courses l>152(5)
Complaint of State Water Resources
Control Board seeking to enjoin riparian
vineyardists from drawing water directly
from river to the vineyards for frost pro-
tection and alleging that direct diversion of
water during frost period constitutes an
unreasonable method of diversion since
water flow during frost season is insuffi-
cient to supply instantaneous need of all
vineyardists entitled to water and that
threatened shortage could be prevented by
utilizing winter storage or reservoirs stated
sufficient facts to constitute a cause of ac-
tion for injunctive and/or declaratory re-
lief. West's Ann.Const. art. 14, 3;
West's Ann.Water Code, 100.
7. Waters and Water Courses G<42, 142
Constitutional amendment relating to
reasonable water use modified long-stand-


JB T







852 126 CALIFORi

ing riparian doctrine and applied by consti-
tutional mandate doctrine of reasonable use
between riparian owners and others includ-
ing appropriators. West's Ann.Const. art.
14, 3.
8. Waters and Water Courses C-42
Under constitutional amendment relat-
ing to water use "beneficial use" cannot be
equated with "reasonable use" permitted by
the constitutional amendment, and mere
fact that use may be beneficial to ripari-
an's lands is not sufficient if the use is not
also reasonable within meaning of constitu-
tional provision. West's Ann.Const. art.
14, 3.
See publication Words and Phrases
for other judicial constructions and
definitions.
9. Waters and Water Courses C42
To achieve the overriding constitution-
al consideration of putting water resources
to reasonable use and to make them availa-
ble for constantly increasing needs of all
people, riparian owners may properly be
required to endure some inconvenience or
to incur reasonable expenses. West's
Ann.Const. art. 14, 3; West's Ann.Water
Code, 100.

10. Waters and Water Courses C79
Whether requirement that riparian
vineyardists build water reservoirs for
winter storage thereby eliminating direct
pumping from river for purpose of frost
protection during period of low river flow,
a practice claimed to be an unreasonable
method of diversion of water, was the only
feasible way for achieving the constitution-
al mandate of reasonableness in use of wa-
ter was a question of fact. West's Ann.
Const. art. 14, 3; West's Ann.Water
Code, 100.

II. Waters and Water Courses s=79
Regulation of Water Resources Con-
trol Board relating to diversion of water
from river for frost protection of vine-
yards did not exceed authority of Board
with respect to its declaration that direct
diversion of water in frost period constitut-
ed an unreasonable method of use, since


I.


A REPORTER 54 Cal.App.3d 743

regulation as properly construed amounts
to no more than a policy statement and
leaves the ultimate adjudication of reason-
ableness to the judiciary. West's Ann.
Const. art. 14, 3; West's Ann.Water Code,
100.
12. Waters and Water Courses =79
Water Resources Control Board regu-
lation relating to direct pumping of water
from river for purpose of frost protection
in vineyards was not invalid on ground
that it imposed on riparian owners a per-
mit requirement as precondition to exercise
of riparian rights, since regulation explicit-
ly provides that permit is required only for
the appropriation of water which means
only that the appropriator and not the ri-
parian owners are subject to the regulatory
scheme. West's Ann.Const. art. 14, 3;
West's Ann.Water Code, 100.
13. Waters and Water Courses 079
Since language of Water Resources
Control Board regulation was clearly sus-
ceptible to a meaning which made it valid,
trial court's holding to contrary was unjus-
tified.
14. Waters and Water Courses 042 -
Vested property rights of riparian
owner in stream flow is the right to rea-
sonable use of the flow of water. West's
Ann.Const. art. 14, 3.
15. Eminent Domain <>2(1)
Taking or damaging of property for
public use falls within the realm of emi-
nent domain while the regulation of the
use and enjoyment of a property right for
public benefit falls within the sphere of the
police power.
16. Waters and Water Courses 0=37
Constitutional amendment relating to
reasonable water use is a legitimate exer-
cise of police power of state and purports
only to regulate the use and enjoyment of
property right for public benefit and does
not destroy vested rights of riparian own-
ers. West's Ann.Const. art. 14, 3.
17. Waters and Water Courses =49
State Water Resources Control Board
has statutory authority to bring action to


1 IC-~skEle~na:









PEOPLE EX REL. STATE WATER RESOURCES CON. BD. v. FORNI 853
54 Cal.App.3d 747 Cite as, App., 126 Cal.Rptr. 851


test reasonableness of riparian owners' wa-
ter use. West's Ann.Water Code, 275.




Evelle J. Younger, Atty. Gen. of the
State of California, Carl Boronkay, Asst.
Atty. Gen., Roderick Walston, Gregory K.
Wilkinson, Deputy Attys. Gen., San Fran-
cisco, for plaintiff and appellant.
Martin McDonough, Bruce McDonough,
McDonough, Holland, Schwartz & Allen,
A Professional Corp., Sacramento, for de-
fendants and respondents.
P. A. Towner, Chief Counsel, Russell
Kletzing, Asst. Chief Counsel, V. L. Cline,
S. R. Cohen, State of California Dept. of
Water Resources, Sacramento, for amicus
curiae, State Water Resources Control Bd.


177 I KANE, Associate Justice.

Plaintiff appeals from the trial court's
judgment denying injunctive and/or de-
claratory relief.

1. Unless otherwise indicated, all references
will be made to the California Water Code.
2. The pertinent portions of the complaint read
as follows:
"(1) Wine production and the growing of
grapes in Napa County is an economically
important agricultural industry to Napa
County and to the State of California;
S"(2) A major problem in the production
of wine grapes in the Napa River Valley
is frost damage between the dates of March
15 and May 15 of each year;
"(3) The most effective method of protec-
tion against such frost damage is application
of a fine spray of water from a sprinkler
system;
"(4) Much of the existing sprinkler sys-
tems for such application use the Napa River
as a direct source of water and the instantane-
ous demand for Napa River water for frost
protection alone will in the near future far
exceed the average flow of the Napa River for
the months of March, April and May;
"(5) The only feasible solution to this
threatened shortage of Napa River water,
which shortage will, unless averted, affect and
jeopardize a grape crop important not only
to the public health, welfare and economic
well-being of Napa County but of the entire
State of California, is (a) to require forthwith
the winter storage of water for use for frost


On March 13, 1974. the State Water Re-
sources Control Board ("Board") initiated
this action to enjoin certain vinevardists in
the Napa Valley from drawing water di-
rectly from the Napa River to their vine-
yards for frost protection. The complaint
charges that the direct diversion of water
during the frost period extending from
March 15 through May 15 each year con-
stitutes an unreasonable method of diver-
sion within the meaning of article XIV,
section 3. of the California Constitution
and section 100 of the Water Code.1 This
assertion is predicated upon allegations
that the river flow during the frost season
is insufficient to supply the instantaneous
needs of all the vineyardists entitled to wa-
ter. As a consequence, it is alleged, direct
diversion during the frost season may at
times dry up the river and deprive many of
the vinevardists of water which they need
to protect their vines from frost. Based
upon similar allegations, the Board also
sought redress by way of declaratory
relief.2

protection so that no direct pumping of Napa
River water for such purpose would be
necessary during an actual frost, and (b) to
develop, for future long-range use, other
sources of water to supplement the Napa
River."
"2. An actual controversy has arisen and
now exists between the People and the de-
fendants in that the People maintain and
assert that because of the high instantaneous
demand for water of the Napa River in Napa
County for frost protection and the inade-
quacy of the supply to satisfy the demand
during the frost season after March 15 of
each year and in particular between March
15 and May 15 of this year, diversion of water
from the Napa River during said period for
frost protection except to replenish water
which had been stored in reservoirs prior to
March 15 is an unreasonable use and an un-
reasonable method of use of water within the
meaning of Article 14, Section 3 of the Cali-
fornia Constitution and Section 100 of the
California Water Code. Defendants dispute
this contention amn threaten to use direct
diversion of such Napa River water for frost
protection during March 15 through May 15,
of this year, 1974, and of future years.
"3. The People seek a declaration at this
time, for reasons set out hereinabove, that the
diversion of water from the Napa Rirer in









854


126 CALIFORNIA REPORTER


_2j48_LOn September 24, 1974, respondents filed
a motion for summary judgment, claiming
inter alia that they were riparian owners
and that the Board had no authority to
prohibit or limit their use of water.
Treating the motion as one for judgment
on the pleadings, the trial court granted
the motion, holding in essence that the di-
rect diversion of water from the Napa
River for frost protection during the frost
season was not unreasonable within the
meaning of article XIV. section 3. of the
Constitution and section 100. At the sme
time the trial court struck down section
659 of title 23 of the California Adminis-
trative Code (hereinafter "Regulation"),
which declared that the direct diversion of
water from the Napa River during the
frost period was unreasonable. Judgment
on the pleadings was entered on January
10, 1975, and the present appeal followed.
[1-3] Under well settled law a motion
for a judgment on.the pleadings performs
the function of a general demurrer and is to
be treated in the same fashion on appeal.
Accordingly, such motion admits the mate-
rial facts alleged in the pleadings of the
adverse party and the issues raised by it
are legal and not factual (Board of Regents
v. Davis (1975) 14 Cal.3d 33, 37, 120 Cal.
Rptr. 407, 533 P.2d 1047; Colberg, Inc. v.
State of California ex rel. Dept. Pub. Wks.
(1967) 67 Cal.2d 408, 411-412, 62 Cal.Rptr.
401, 432 P.2d 3; Hospital Council of
Northern Cal. v. Superior Court (1973) 30
Cal.App.3d 331, 337-338, 106 Cal.Rptr. 247;
Silver v. Beverly Hills Nat. Bank (1967)
253 Cal.App.2d 1000, 1005, 61 Cal.Rptr.
751). The determinative issue on appeal,
therefore, is whether appellant's complaint
states facts sufficient to constitute a cause
of action; or, to put it another way,
whether the facts set out in the complaint
justify the trial court's conclusion that the
water use in question is reasonable as a

Napa County during the frost season after
March 15 of each year for frost protection,
except to replenish water which had [been]
stored in reservoirs prior to March 15, is an
unreasonable use and an unreasonable method


54 Cal.App.3d 748


matter of law. We entertain no doubt
that when viewed in light of the applicable
legal principles the factual allegations of
the complaint do state valid causes of ac-
tion for both injunctive and declaratory re-
lief, and the contrary ruling of the trial
court must be reversed.
As appears from the averments of the
complaint, appellant's causes of action were
primarily predicated on article XIV, sec-
tion 3, of the California Constitution, and -
section 100 of the Water Code. Article
XIV, section 3, of the Constitution pro-
vided that "It is hereby declared that be-
cause of the conditions prevailing in this
State the general welfare requires that the
water resources of the State be put to ben-
eficial use to the fullest extent of which
they are capable, and that the waste or un-
reasonable use or unreasonable method of
use of water be prevented, and that the
conservation of such waters is to be exer-
cised with a view to the reasonable and
beneficial use thereof in the interest of the
people and for the public welfare. The
right to water or to the use or flow of wa-
ter in or from any natural stream or water
course in this State is and shall be limited
to such water as shall be reasonably re-
quired for the beneficial use to be served,
and such right does not and shall not ex-
tend to the waste or unreasonable use or
unreasonable method of use or unreasona-
ble method of diversion of water. Ripari-
an rights in a stream or water course at-
tach to, but to no more than so much of
the flow thereof as may be required or
used consistently with this section, for the
purposes for which such lands are, or may
be made adaptable, in view of such reason-
able and beneficial uses; provided, how-
ever, that nothing herein contained shall be
construed as depriving any riparian owner
of the reasonable use of water of the
stream to which his land is riarian under

of use within the meaning of Article 1.
Section 3 of the California Constitution and
Section 100 of the Water Code." (Emphasis
added.)


- --a~b~scnlF-r*~q.~8Tar:~~b$~j~a~e~~








PEOPLE EX REL. STATE WATER
54 Cal.App.3d 750 Cite as, App., 1
reasonable methods of diversion and use,
or of depriving any appropriator of water
to which he is lawfully entitled. This sec-
tion shall be self-executing, and the Legis-
lature may also enact laws in the further-
ance of the policy in this section
contained."3 (Emphasis added.)

[4] The foregoing section by which the
Constitution was amended in 1928 is con-
strued by the cases as a rule of reasonable
use "to all water rights enjoyed or asserted
in this state, whether the same be ground-
ed on the riparian right or the right, anal-
ogous to the riparian right, of the overly-
ing land owner or the percolating water
right, the appropriative right." (Pea-
body v. City of Vallejo (1935) 2 Cal.2d
351, 383, 40 P.2d 486 (emphasis added);
see also Joslin v. Marin Mun. Water Dist.
(1967) 67 Cal.2d 132, 138, 60 Cal.Rptr. 377,
381, 429 P.2d 889, 893; Gin S. Chow v.
J1so City ofLSanta Barbara (1933) 217 Cal. 673,
703-705, 22 P.2d 5.) As epitomized in
Peabody, the amendment declares that:
(1) the right to the use of water is limited
to such water as shall be reasonably re-
quired for the beneficial use to be served;
(2) such right does not extend to the waste
of water; (3) such right does not include
unreasonable use or unreasonable method
of use or unreasonable method of diversion
of water; and (4) riparian rights attach
to, but to no more than so much of the
flow as may be used consistently with the
foregoing principles (Peabody v. City of
Vallejo, supra, 2 Cal.2d at p. 367, 40 P.2d
486).

[5] Thus, it seems evident that the
overriding principle governing the use of

3. Section 100 enacted in the implementation
of the aforecited constitutional provisions
similarly underscores that "It is hereby de-
clared that because of the conditions pre-
vailing in this State the general welfare re-
quires that the water resources of the State
be put to beneficial use to the fullest extent
of which they are capable, and that the waste
or unreasonable use or unreasonable method
of use of water be prevented, and that the
conservation of such water is to be exercised
with a view to the reasonable and beneficial


RESOURCES CON. BD. v. FORNI 855
26 Cal.Rptr. 851
water in California is that such use be rea-
sonable. However, as repeated on innu-
merable occasions, what is reasonable use
or reasonable method of use of water is a
question of fact to be determined according
to the circumstances in each particular
case (Joslin v. Marin Mun. lWater Dist.,
supra, 67 Cal.2d at p. 139, 60 Cal.Rptr. 377,
429 P.2d 889; Gin S. Chow v. City of
Santa Barbara, supra, 217 Cal. at p. 706,
22 P.2d 5). As the court put it in Tulare
Dist. v. Lindsay-Strathmore Dist. (1935), 3
Cal.2d 489, 567, 45 P.2d 972, 1007, "What
is a beneficial use, of course, depends upon
the facts and circumstances of each case.
What may be a reasonable beneficial use,
where water is Present in excess of all
needs, would not be a reasonable beneficial
use in an area of great scarcity and great
need. What is a beneficial use at one time
may, because of changed conditions, be-
come a waste of water at a later time."
(Emphasis added.)
[6] It is readily apparent that the claim
that respondents' direct diversion of water
constitutes an unreasonable use and an un-
reasonable method of use of water is pred-
icated on the very premise that the direct
pumping results in great temporary scarci-
ty of water during the crucial frost period.
Thus, as spelled out before, the complaint
sets forth that the most effective way of
protecting the young vine shoots against
frost damage is the application of a fine
spray of water from water sprinklers; that
the diversion of water by direct pumping
creates a high instantaneous demand for
water which, in turn, depletes the river and
makes the water supply inadequate during
the frost period; that te threatened short-

use thereof in the interest of the people and
for the public welfare. The right to water
or to the use or flow of water in or from any
natural stream or watercourse in this State
is and shall be limited to such water as shall
be reasonably required for the beneficial use
to be served, and such right does not and
shall not extend to the waste or unreasonable
use or unreasonable method of use or unrea-
sonable method of diversion or water." (Em-
phasis added.)


I II







126 CALIFORNIA REPORTER


age which poses great hazard to the grape
vineyards in Napa Valley can be prevented
by building and utilizing winter storage or
reservoirs which render the direct pumping
of water unnecessary during the short du-
ration of the actual frost. Based upon
these factual allegations, appellant properly
concludes that the direct diversion of wa-
ter for frost protection in the crucial peri-
od constitutes an unreasonable use and an
unreasonable method of use of water with-
in the purview of the Constitution and the
statutory provisions. Consequently, appel-
J_1s5 lant'sicomplaint does state sufficient facts
to constitute a cause of action for injunc-
tive and/or declaratory relief and renders
the judgment on the pleadings erroneous as
a matter of law.


ing riparian doctrine and to apply by con-
stitutional mandate the doctrine of reason-
able use between the riparian owners and
others, including appropriators (Tulare
Dist. v. Lindsay-Strathmore Dist., supra, 3
Cal.2d at p. 524, 45 P.2d 972). Likewise,
the claim that respondents' use of water is
beneficial does not bring it within the con-
stitutional postulate of reasonableness. As
emphasized in Joslin, "beneficial use" can-
not be equated with "reasonable use," and
"the mere fact that a use may be beneficial
to a riparian's lands is not sufficient if the
use is not also reasonable within the mean-
ing of section 3 of article XIV .
(Joslin v. Marin Mun. Water Dist., supra,
67 Cal. 2d at p. 143, 60 Cal.Rptr. at p. 384,
429 P.2d at p. 896).


The aforestated salient reasons notwith- [9, 10] Respondents' next contention
standing, respondents insist that appellant's that the Board infringed upon existing ri-
complaint failed to state a cause of action parian rights by requiring construction of
and that the judgment on the pleading was storage facilities also misses the point. As
properly granted by the trial court. In es- we have repeatedly underscored, the over-
sence, it is contended that (1) respondents riding constitutional consideration is to put
as riparian owners possess a primary right the water resources of the state to a rea-
to use the river flow by direct diversion to sonable use and make them available for
beneficial use even if as a result no water the constantly increasing needs of all the
is left for appropriation; (2) the Board people. In order to attain this objective,
has no authority to regulate or prohibit the the riparian owners may properly be re-
exercise of riparian rights or to prescribe quired to endure some inconvenience or to
construction of storage facilities as a pre- jncur reasonable expenses (Rancho Santa I-:
requisite to the exercise of such rights; Margarita Vail (1938) 11 Cal.2d 501,
and (3) the riparian right is a part of the 561, 81 P.2d 533; Waterford I. Dist. v.
land, a vested right of which the riparian Turlock I. Dist. (1920) 50 Cal.App. 213,
owner cannot be deprived without iust 194 P. 757; Peabody v. City of Vallejo,
compensation. As shall appear below, re- supra, 2 Cal.2d at p. 376, 40 P.2d 486).
spondents' arguments are lacking in merit Whether the requirement of building water
and must therefore be rejected. reservoirs in the case at bench is the only
[7,8] Addressing respondents' first feasible method for achieving the constitu-
contention, we concede that under the aw tional mandate of reasonableness is mani-
prior to the 1928 constitutional amendment festly a question of fact.
the riparian owner had a right to all the [11] In light of our conclusion that the
ordinary and natural river flow undimin- alleged unreasonable use and unreasonable
ished except by reasonable use of upper ri- method of use of water may be properly
parian owners (Herminghaus v. South. predicated upon the Constitution and the
California Edison Co. (1926) 200 Cal. 81, Water Code, the validity of Regulation,
95, 252 P. 607; 3 Witkin, Summary of Cal. section 659, referred to in appellant's corn-
Law (1973 ed.), 581, p. 2247). However, plaint, is not central to the adjudication of
as pointed out before, the effect of the this case. Since, however, the trial court
passage of article XIV, section 3, of the held that Regulation, section 659, is invalid
Constitution was to modify the longstand- and respondents insist on appeal that the


856


e --~--~9aL~1FB~~


54 Cal.pp-3d 750








PEOPLE EX REL. STATE WATER RESOURCES CON. BD. v. FORNI 857
54 Cal.App.3d 753 Cite as. App., 126 Cal.Rptr. S51


ruling of the trial court is correct, we pro-
ceed to determine the effectiveness of that
section.4
To begin with, we find no merit in re-
spondents' assertion that the Board has ex-
ceeded its authority by declaring in section
659 that the direct diversion of water in
the frost period constitutes an unreasona-
ble method of use within the meaning of
the Constitution and Water Code. Proper-
ly construed, section 659 amounts to no
more than a policy statement which leaves
the ultimate adjudication of reasonableness
to the judiciary. Indeed, the initiation of
the present action furnishes the best proof
that appellant did not consider the regula-
tion and the policy declaration therein
binding as to respondent riparian owners,
and submitted the issue for judicial deter-
mination.
[12, 13] We are likewise unable to con-
strue section 659 as imposing upon the ri-
parian owners a permit requirement as a
precondition to the exercise of their ripari-
an rights. Quite contrary to respondents'
contention, section 659 explicitly provides
753 that a permit is required only for thelap-
propriation of water (see fn. 4, ante).
This, by definition, means that the only
persons who are subject to the regulatory
scheme are the appropriators,5 not the ri-
parian owners whose right to the use of
water derives from their ownership of land
rather than from any administrative au-
thorization. Since the language of section
659 of the Regulation is clearly susceptible
to a meaning which makes it valid, the

4. Regulation, section 659, provides that "Be-
cause of the high instantaneous demand for
water of the Napa River in Napa County for
frost protection and the inadequacy of the
supply to satisfy the demand during tlhe
frost season after March 15 in most years,
diversion of water from the Napa River after
March 15 for frost protection except to re-
plenish water stored in reservoirs prior to
March 15 is an unreasonable method of diver-
sion within the meaning of Article 14, Section
3 of the California Constitution and Section
100 of the Water Code. No permits for the
appropriation of water from the Napa River
after March 15 of any year for frost protec-
tion shall be granted except to replenish win-
ter storage and such permits shall not be
granted until a water distribution program
126 Cal.Rptr.-54V'/


trial court's holding to the contrary is un-
justified and must be set aside (ci. Jones-
Hamilton Co. v. Franchise Tax Bd. (1968)
268 Cal.App.2d 343, 349, 73 Cal.Rptr. 896).

[14-16] Respondents' third contention
as to the vested right theory deserves but
short consideration. While correctly argu-
ing that a vested property right cannot be
taken without just compensation, respond-
ents ignore the necessity of first establish-
ing the legal existence of a compensable
property interest. Such an interest con-
sists in their right to the reasonable use of
the flow of water. However, for the pur-
poses of judgment on the pleadings, appel-
lant adequately alleged that respondents'
use of water was unreasonable. Moreover,
there is a well recognized distinction be-
tween a "taking" or "damaging" for public
use and the regulation of the use and en-
joyment of a property right for the public
benefit. The former falls within the realm
of eminent domain, the latter within the
sphere of the police power. It is estab-
lished beyond dispute that the constitution-
al amendment in question is a legitimate
exercise of the police power of the state,
and that it purports only to regulate the
use and enjoyment of a property right for
the public benefit (Gin S. Chow v. City of
Santa Barbara, supra; Joslin v. Marin
Mun. Wl'ater Dist., supra, 67 Cal.2d at p.
144, 60 Cal.Rptr. 377, 429 P.2d 889). As a
consequence, the vested right theory ad-
vanced by respondents has no applicability
to the present case at all.

among the water users is established that
will assure protection to prior rights. Re-
gardless of the source of the water, the Board
will retain jurisdiction to revise the terms
and conditions of all permits issued for frost
protection should future conditions warrant."
(Emphasis added.)

5. An appropriator is one who takes water
from the stream not under riparian right (3
Witkin. Summary of Cal. Law, supra. 577,
p. 2243). Riparian right is generally defined
as the right which every person through
whose land a natural watercourse runs has
to the benefit of the stream as it passes
through his land, for all useful purposes to
which it .may be applied (51 Cal.Jur.2d,
Waters, 60, p. 531).








858


[17] Finally, we summarily reject the
argument that* the Board had no statutory
authority to bring an action in which the
reasonableness of respondents' water use
could be adjudicated. Section 275 does
confer such authority upon appellant Board
by providing that "The department and
board shall take all appropriate proceedings
or actions before, executive, legislative, or
judicial agencies to prevent waste, unrea-
sonable use, unreasonable method of use,
or unreasonable method of diversion of
water in this state." (Emphasis added.)
15s4 __In conclusion, we wish to make it unmis-
takably clear that all we hold today is that
appellant's complaint states valid causes of
action for either injunctive or declaratory
relief or both, and that the question of rea-
sonable use or reasonable method of use of
water in this state." (Emphasis added.)
cannot be properly resolved by a motion
for judgment on the pleadings.
The judgment is reversed.

TAYLOR, P. J., and ROUSE, J., con-
cur.



(oI KE NUMBER SYSTEM)




Alice Elizabeth BOWLAND et al.,
Plaintiffs and Appellants,
V.
MUNICIPAL COURT OF SANTA CRUZ
COUNTY JUDICIAL DISTRICT;
Defendant;
PEOPLEof the State of California,
Real Party in Interest and
Respondent.
Civ. 35739.

Court of Appeal, First District,
Division 1.
Jan. 26, 1976.
Rehearing Granted Feb. 25, 1976.

Plaintiffs, charged with misdemeanor
of practicing medicine without a valid
certificate, sought peremptory writ of man-


54 CalApp.3d 753


date to restrain municipal court from pro-
ceeding with the prosecution. The Super-
ior Court, County of Santa Cruz, Harry
F. Brauer, J., denied petition, and petition-
ers appealed. The Court of Appeal,
Molinari, P. J., held that phrase "or other
mental or physical condition" as used in
controlling statute does not render statute
unconstitutionally vague or overbroad
since quoted words refer to such condi-
tions only as they arise from or are related
to statutory criteria of any ailment, blemish,
deformity, disease, disfigurement, disorder
or injury and that midwifery does not
constitute a violation of statute absent
showing that it is associated with the diag-
nosis, treatment or operation for one or
more of the aforementioned bodily infirmi-
ties.
Reversed with instructions.


1. Criminal Law -13.1(10)
Physicians and Surgeons 02
Words "or other mental or physical
condition" as contained in statute making
it a misdemeanor to practice medicine
without a certificate did not render the
statute unconstitutionally vague or over-
broad since statute contemplates mental or
physical conditions arising out of or in
connection with any ailment, blemish, de-
formity, disease, disfigurement, disorder
or injury. West's Ann.Bus. & Prof.Code,
2141.

2. Constitutional Law e-47
A court is precluded from considering
hypothetical situations in determining
whether a statute is vague or overbroad;
a statute may be invalid as applied to one
set of facts yet valid as to another.


3. Constitutional Law G-48(1)
All presumptions are in
validity of a statute.


favor of the


4. Constitutional Law =48(3)
Mere doubt is not a sufficient basis
for finding a statute constitutionally de-
fective; its invalidity must be clear and
unquestionable.


126 CALIFORNIA REPORTER


- Imr~ a ll~l~lIl~eA~41~~


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