|
<br />
<br />~ Id h f fI d d f h t. te ovAw 0 0 214 1..'RIPa.lanll",. p.....d '0 .h. 11",1,. of I.. la91.abr.
<br />2Wle t e same or 00 an res e wa rs.. one to play dos..ln..'he-manser. Th. .hor. proprietor could
<br />ing land and never returning to the channel. enforce by Inlundton hi. bare technIcal right to havo the
<br />3. That the right to percolating water ;$ also subject to natural flow of the .tream, even If h. was getting no .ub-
<br />reasonable use. .'~ntial benefit from it. Thl. canine element in the doc-
<br />4 Th tth . t th t rf ...n. J. oball.hed."
<br />. a de appropr,a, ~r may use e s, ream, su hace, ' od' He concluded however, at page 752 that,
<br />und~r9roun or perco a!1n9 ~ater, so o~g as t e an " .. .... public welfar., which requlr.. clalman.. to lacrile.
<br />having the paramount right IS not materially damaged. their benefits 10 broader on.. from a higher utilization,
<br />At page 367 of the opinion, the court pointed out, does not nece.sarily require that their loss be uncompen-
<br />liThe rule of reasonablene.. of use as a measure of sated any raore than in other takings where private rights
<br />weiter rights has been applied by the court as between <<:,re surrander~d In,~he public Int.re~,t." . .
<br />riparian owners. . . ; as between owners overlying an It IS clear that the reasonable use doctrine IS now the
<br />underground water supply. . . 1 as between appropriator law of this state ~s to flowing waters, and waters in under..
<br />. . . ; as between ~verlyi.ng owne~s and exporter from ground basins. Its development was inevitable in the devel..
<br />an underground baSin to nonoverlYlng lands. . . 1 and as f"d' h' h f h
<br />between riparian owners and overlying owners under the opment 0 a seml.arl state In w IC most 0 t e area
<br />doctrine of common source of supply; . . . depends upon imported water for irrigation and domestic
<br />"Epitomized the amendment dodare.: use.
<br />(1) The right to the use of ,!"ater is limited to s~ch water The Legislature has recognized and amplified the doe-
<br />as shall be reasonably required for the beneRclal use to tr" t. f th W t C d F
<br />b. served. InB In numerous see Ions 0 e a er 0 e. or ex-
<br />(2) Such right do.. not extend to the waste of water. ample, Water Code Section 101 adopted in 1943 provides:
<br />(3) Such right doe. not extend to unreasonable us. or "Riparian right. in a atream or watercourse aRach to,
<br />unreasonable method of use or unreasonable method of but to no more than so much of the flow thereof as may
<br />div~rsion of water. be required or used consIstently with this and the next
<br />(4) Riparian right. aHach to, but to no more than 10 preceding section, for the purpose. for which luch lands
<br />much of the flow as may be required or used consistently.. are, or may be made adaptable, In view of such reason-
<br />with this section of the Constitution. able and beneRclal uses; provided, however, that nothing
<br />"The foregoing mandates are plain, they are positive, in this or the next preceding .edion ihall be construed a.
<br />and admit of no exception. They apply to the use of water depriving any .rlparlan owner of 'he reasonable use of
<br />under whatever right the use may be enjoyed. . . water of the stream to which hi, land la riparian u.der
<br />"When the supply (of water) is limited public interest reasonable methods of diversion and use, or of deprl.,.
<br />reCluires that there be the greatest number of beneRclal ing any appropriator of water to which he Is lawfully
<br />uses which the supply can yield." entitled."
<br />The .court did not overlook the rights in prospective or Water Code Section 102 provides:
<br />future l,Ises, saying at page 368: "AII water within the State Is the property of .he people
<br />"The problem now has thre. aspects: First after ex- of the State, but the right to the us. of water may be oc-
<br />cluding all of the reasonable and beneficial ...;es present quired by app~priatlon In '~e manner provided by law."
<br />or prospective (considering in connection therewith rea_ Water Code Section 104 prOVides:
<br />sonable me.hods of use and reasonable methods of div..... "It Is hereby declared .hat the people of the State hay.
<br />.Ion) to which the water of the stream are put, either under a paramount Inter.st In the u.e of all the water of the
<br />riparian right or by prior appropriation, is .her. then State and that the State shall determine what wa'er of
<br />wa'er wasted or unused or not. put to any beneRcial use?" the Stat., surface and underground, can be converted to
<br />(Emphasis added.) public u.e or controlled for public protedlon."
<br />More recently decided was the case of City of Paso- Water Code Section 105 provides:
<br />denav. City of Alhambra, 33 Cal. 2d 908 {I 949]. This "1.1. he.eby d..la.ed .ha. .h. p.o..ctlon of .h. publl.
<br />ease involving several users of water from an underground i~t.rest in t~e development of the water resources of the
<br />b .'. ffi h .. I f h P b d. Sta'e is of v...1 cencarn to the peopl. of tlr. St... and that
<br />asm rea Ims t e prmclpa 0 t e ea 0 y ease as to the State shall determln. In what way the water of the
<br />reasonable use. stating: State, both surface and underground, ahould be developed
<br />"In California surplus waters may rightfully be appro_ for the greate.t public benefit."
<br />pria.ed on privately owned land for nono;,erlying us.s, Water Code Section 1201 provides:
<br />such as devotion to a public use or exportation beyond "AII water flowing In any natural channel excepting so
<br />the b~&in or watershed (citing ca!ie~) . : . As betw.een ap- far as it haa been or Is being appUed to us~ful and bene_
<br />proprlato.rs, however: the ~ne first In time is first 1ft right, fleial purpos.s upon, or In.ofar as it Is or may be reason-
<br />and a prior appropriator II entitled ~ 011 the water h. ably n.eded for useful and beneRcial purposes upon landl
<br />needs, up to the amou~t he has token In the p~st, befo... riparian thereto, or otherwise appropriated, i. hereby d..
<br />a subs.quent appropriator may take any. (City of San dared to be public water of the State and .ubJect to appro-
<br />Bernardino v. ~i'y 0.' Riversid., 186 Cal. 7, 26-~8)." priation in accordance with the provisions of this code."
<br />The latest case IS United States v. Gerlach LIve Stock Section '06 of the Water Code enunciates the State
<br />Co,! 339 U:S. 725 decided in 1950 which. involved th~ right policy as to what is the highest use of water as follows:
<br />of inundatIon of grasslands and resulting absorphon of "It Is hereby declared to be the e.tabli.hed policy of
<br />water. Plaintiff was deprived of such inundation by the eon- thi. State that the use of water for domestic purposes is
<br />struction of Frient Dam. a part of the Central Valley Project. th. highest us,~ of water and that the next highest use I.
<br />Th<; United States Supr.eme Court ~eld that p'~intiffs were fa. I~~~~~y OF ORIGIN PROTECTION
<br />entitled to compensatIon for the" loss. Jushce Jackson . . .
<br />wrote the opinion for the court, stating at p.ge 751: A great deal of concern IS beIng expressed WIth reg.rd
<br />
<br />12
<br />
<br />13
<br />
|