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<br />
<br />invo&llwere vested property rights and conclude~~t
<br />
<br />ther~~~e the Constitution forbade the Legislature"Tr~m
<br />
<br />interfering with it, as had been attempted by the Water
<br />
<br />Commission Act of 1913. (Stats. 1913, p. 1012). It was
<br />
<br />clear that under the holding of the ease the right to waste
<br />
<br />vast amounts of water in order to give some small benefit
<br />
<br />to riparian lands was recognized.
<br />
<br />Justice John Shenk clearly comprehended this, and in a
<br />
<br />strong dissent pointed out the unreasonableness of the
<br />
<br />plaintiff's wasteful use as a matter of law. It can be said
<br />
<br />without fear of contradiction that in the whole history of
<br />
<br />California there is no single individual who has contributed
<br />
<br />more to the substance and development of California's
<br />
<br />water law than Justice John Shenk, the senior member of
<br />
<br />the California Supreme Court. For it was Justice Shenk
<br />
<br />who courageously wrote the dissenting opinion in the
<br />
<br />Herminghaus ease and since that time by assignment of
<br />
<br />the Chief Justice has authored nearly all of the far-reaching
<br />
<br />decisions of the Supreme Court in the field of water law
<br />
<br />since 1926. He pointed out that the enjoyment of all prop-
<br />
<br />erty was subject to the police power of the state, and said
<br />
<br />at page 128, .
<br />
<br />UA more extravagant or wa.teful UI. of water could not
<br />well be Imagined. Two and one-hall acre-feet of water I.
<br />mar. than annually sinks into their lands. Th. balance I,
<br />exce.. as to them and so far as they are concerned passes
<br />on to the lea and I, utterly wasted. Thl. waste i. not only
<br />contrary to Ita tutory regulation but It works an Inlu.tlce
<br />on the state, which I, endeavoring to conserve luch wat.r.
<br />for useful and beneficial us.s by appropriator -under the
<br />lawI of the .tate."
<br />
<br />Public reaction to the shockingly wasteful doctrine of the
<br />
<br />Herminghaus decision soon led to the enactment of the
<br />
<br />1928 constitutional amendment that has been characterized
<br />
<br />as "the fountainhead of California water law." (38 Cal.
<br />
<br />Law Rev. 572). The new doctrine, usually referred to as the
<br />
<br />ureasonab'e us.e doctrinell is found in Article XIV.
<br />
<br />Section 3 of the State Constitution, adopted by the people
<br />
<br />on November 6, 1928. The section reads as follows:
<br />
<br />"It .is hereby declared that becaule of the conditions
<br />prevailing 'n this State the general welfare requlrel that
<br />the water resource. of the State be put to beneficial. use
<br />to the fullest extent of which they are capable, and that
<br />the waste or unreasonable use or unreasonable method
<br />of use of water be prevented, and that the con.ervation
<br />of such waters i. to be exercised with a.view to the rea.on..
<br />able and beneficial u.e thereof In the interest of the pea..
<br />pie and for the public welfare. The right to water or to the
<br />u.e or flow of water in or from any natural stream or
<br />water course in this State i. and shall be limited to such
<br />water as shall be reasonably required for the beneficial
<br />u.. to be served, and such right does not and shall not
<br />extend to the waste or unreasonable u.e or unrea.onable
<br />method of us. or unreasonable method of diversion of
<br />water.
<br />Riparian right. in a stream of water cours. attach to,
<br />but to no more than 10 much of the flow thereof 01 may
<br />be required or used consistently with thl. .ection, for the
<br />purpose. for wh.ch luch lands are, or may be made adapt-
<br />.altle, in vIew of such rea.onable and beneficial u.e.; pro..
<br />vided, however, that nothing herein contained shall b.
<br />construed as deprIVing any riparian owner of the reason..
<br />able use of wat.r of the stream to whIch his land Is
<br />
<br />10
<br />
<br />aarian under reasonab'. methods of dlver.ion a..,
<br />O 0 21 t..!'\ or of depriving any appropriator of water to which he is
<br />;. Hi lawfully entit'ed. This .ection shall be self..executlng, and
<br />the Legislature may also enact laws in the furtherance of
<br />the policy In this section contaIned."
<br />The policy of restriction on the riparian rights enumer-
<br />ated in this section Was not a unique development. As
<br />Justice Shenk stated in Peabody v. Vallejo, 2 Cal. 2d
<br />351,365(1935),
<br />"In adopting a policy modifying the long-standIng
<br />riparian docti'lne of the .tate, California has done by can..
<br />stitutional amendment what many of the western state.
<br />have done by .tatute or court decisions. Of the .eventeen
<br />western states, generally referred to as the Irrigation
<br />states, nine now recognize the m.odIO.d doctr'ne of
<br />riparian rights and eight have entirely abrogated the
<br />doctrine of riparian right. aad recognize only the doc..
<br />trine of appropriation. The nine are North Dakota, South
<br />Dakota, Nebra.ka, Kansas, Oklahoma, Texas, Washington,
<br />Oregon, and California, and the eight are Montana, Idaho,
<br />Wyoming, Nevada, Utah, Colorado, Arizona, and New
<br />Mexico."
<br />The first case interpreting the new constitutional section
<br />I was Gin S. Chow v. City of Santa Barbara, 217 Cal.
<br />673 in 1933. In that ease, the plaintiff was a riparian owner
<br />I on the Santa Ynez River. The defendants were the City of
<br />Santa Sarbara and the Montecito County Water District.
<br />Defendants were located over the divide and out of the
<br />Santa Y nez watershed. The City of Santa Sarbara appro-
<br />priated water on the river, and the plaintiff asked an
<br />injunction against storing. impoun~ing and diverting river
<br />water and percolating water. The court found that defend-
<br />ants' action left enough water for r.iparian owners' use. and
<br />that defendant was only taking "storm, flood, and freshet
<br />water.1I
<br />In holding that plaintiff's use was not unreasonably inter-
<br />fered with, the court adopted much of the reasoning of
<br />Judge Shenk's now famous dissent in the Herminghaus
<br />ease. At page 701 the court stated:
<br />"That the con.titutlonal amendment now under con..
<br />slderation Is a legitimate exercise of the police power of
<br />the state cannot be que.tioned."
<br />Regarding Ildue process" under the Federal Constitu-
<br />tion, the court pointed out (at page 705):
<br />"Furthermore, that court (United State. Supreme Court)
<br />has said that 'every stat. I. free to change it, law. gov..
<br />erning riparian ownership and to permit the approprla..
<br />1 tion of flowing wat.r for such purpo.es as it may deem
<br />wise' (citing ca.e.)."
<br />The next ease in point was Peabody v. City of Vallejo,
<br />l 2 Cal. 2d 351 (1935) which involved an injunction against
<br />the City of Vallejo, as an appropriator under a permit, from
<br />storing any water of Gordon Valley Creek. Plaintiffs were
<br />riparian owners who claimed defendants' r.roject perma-
<br />nently injured their water supply. Various p aintiffs alleged
<br />the normal runoff benefited them by depositing silt, washing
<br />salt out of land, seepage into the land, and maintaining
<br />the water table.
<br />The court cited the new, at that time, amendment to the
<br />Constitution-Article XIV, Section 3-and held:
<br />I. That the riparian use for silting and removing salinity
<br />is an unreasonable use.
<br />
<br />II
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