PUB00109 - Laserfiche WebLink

Home Browse Search

Loss of priority. In the decision of In re Rights to Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, a statutory adjudi- cation proceeding, the California Supreme Court held that, while they cannot be extinguished in the statutory adjudication process, in cer- tain situations unexercised riparian rights can be subordinated to all presently exercised riparian and appropriative rights. In this circum- stance, when a riparian seeks to activate a dormant right, application must fIrst be made either to the State Board or to the superior court. Long Valley Creek, page 359, fn. 15. Such rights will be incorporated into the court decree from the adjudication, but the date of priority will be the date of the riparian's application. Thus, the riparian right will be subordinate to all rights recognized in the original decree and to any rights granted after the original decree before the date of the riparian's application. Long Valley Creek, pages 358-359. Priority/Interrelationship with Other Rights Rights between riparians Correlative rights. Riparians do not have a right to a predeter- mined amount of water. Prather, pages 559-561. Instead, riparian rights in water are held in common with all riparian users on a wa- tercourse. Seneca Consolidated Gold Mines v. Great Western Power Co. (1930) 209 Cal. 206, 220. These "correlative rights" allow the use of water on riparian land if the rights of the other riparians along the watercourse are not injured. Gin Chow, page 695; Pabst v. Finmand (1922) 190 Cal. 124, 129. Water shortages are shared by all riparian owners. Harris v. Harrison (1892) 93 Cal. 676,681-682. Unlike appropri- ators, who are subject to a fIrst-in-time, fIrst-in-right doctrine, a ripar- ian owner does not have a priority over other riparian owners along the same watercourse due to earlier use in time. Gin Chow, page 695. Rights between riparians and appropriators. Traditionally, a riparian right has been "prior and paramount" to an appropriative right. Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424, 445. In the past, in times of shortage, riparians were entitled to fulfIll their needs before appropriators were entitled to any use of the water. United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82, 101-102. However, several cases decided after the 1928 constitutional amendment have limited a riparian's use of water against an appro- priator under the reasonable use requirement. In Peabody v. City of Vallejo (1935) 2 Cal.2d 351, the California Supreme Court held that a riparian plaintiff did not have the right to use stream flow for the purpose of depositing silt and leaching salts on riparian land. The A riparian owner does not have a priority over other riparians due to earlier use of the water. Generally, a riparian right is "prior and paramount" to an appropriative right. Chapter 2 Water Rights in California 37