PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

the public domain. Public domain iands, which comprised the majority
of western lands, were transferred by federal patents and state
grants to private ownership and included the transfer of riparian
water rights. The court held that the Civil Code sections addressing
water rights established riparian rights as "paramount" to the rights
of nonriparians in certain instances. Lux, pages 345-374. The court
aiso held that a riparian was limited to taking a reasonable quantity
of water without harming other riparian owners.
in 1913, the legisiature took additional action to clarify water
rights law through the enactment of the Water Commission Act.
Stat. 1913, ch. 586, p. 1012. The Act provided the exclusive method
for acquiring new appropriative rights through the establishment of
a commission to administer the Act. Water Code ~ 174 et seq. (The
commission ultimately evolved into the State Board.) The Water
Commission Act does not apply to groundwater, riparian rights, or
appropriative rights acquired prior to its enactment. The role of the
State Board is discussed more fully in chapter 6.
Constitutional Amendment of 1928, The dual system of water
rights recognized in Lux v. Haggin continued to exist, with riparian
rights generally being paramount to appropriative rights. Lux v.
Haggin required riparians to use water reasonably vis-a.-vis other
riparians but was silent with regard to whether the same obligation
was owed to appropriators. The issue of whether a riparian was re-
quITed to exercise reasonableness with regard to nonriparians was
first addressed in 1926 when the California Supreme Court heard
another dispute between a riparian and an appropriator. In Herming-
haus v. Southern California Edison Co. (1926) 200 Cal. 81, the court held
that a downstream riparian had the right to use the entire flow of the
San Joaquin River to flood pastureland for the reclamation of soil and
for irrigation, thus preventing the upstream development of a power
project pursuant to an appropriative right. The riparian's use of water
resulted in the waste of huge amounts of water, and the appropriator
argned that the supply was adequate to meet the needs of both par-
ties if the water was used more efficiently. Nonetheless, the California
Supreme Court declared that although riparians were required to be
reasonable with regard to one another, if a riparian's use of water
was beneficial, the riparian was under no duty to an appropriator to
use water reasonably or to utilize a reasonable method of diversion.
In direct respons,e to the Herminghaus decision, the California
Constitution was amended in 1928, broadening existing law to re-
quire all water to be used in a reasonable, beneficial manner. Cal.
Const. art. X, ~ 2, originally Cal. Const. art. XIV, ~ 3 (1928, amended

" ~.f"~:-*-_ ~- ,-

The !1928 constitutional amendment
required riparian use to be reasonable
pis-a-vis competing appropriative uses.

Chapter 2 Water Rights in California 31