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Last modified
5/14/2010 8:58:17 AM
Creation date
9/30/2006 10:18:55 PM
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Publications
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
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<br />outside the watershed. However, the riparian right is not lost by <br />diverting water across nonriparian lands. Fall River Valley Irr. Dist. <br />v. Mt. Shasta (1927) 202 Cal. 56, 71-72. <br /> <br />Appropriative Water Rights <br /> <br />Introduction. The second major doctrine governing surface water <br />rights in California is the law of appropriative rights, which exists <br />concurrently with the doctrine of riparian rights. Lux v. Haggin <br />(1886) 69 Cal. 255. <br />An appropriative right is the right to divert and use a specific <br />quantity of water for reasonable, beneficial use in a specific loca- <br />tion. Unlike the riparian rights doctrine, the historic principle of <br />the prior appropriation doctrine is "first-in-time, first-in-right." An <br />individual who first appropriates and uses water for a reasonable, <br />beneficial purpose has a right which is superior to that of later <br />appropriators. Irwin v. Phillips (1855) 5 Cal. 140, 147; Shirokow, <br />pages 307-308; Water Code S 1450. <br />When the amount of water available is insufficient to meet the <br />needs of all appropriators, traditional case law holds that junior ap- <br />propriators can be prevented from exercising their rights until the <br />water rights of senior appropriators are satisfied. However, this rule <br />seems impractical today, since the cities and water districts provid- <br />ing urban water supplies generally hold appropriative rights. San <br />Bernardino v. Riverside (1921) 186 Cal. 7; Orange County Water <br />District v. City of Riverside (1959) 173 Cal.App.2d 137. Because it is <br />generally unrealistic to terminate such uses completely, courts can <br />be seen to be moving away from a strict application of the first-in- <br />time doctrine in order to protect established uses. See Los Angeles v. <br />San Fernando (1975) 14 Cal.3d 199, 265, fn. 61.; United States v. <br />State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 133. <br />The law of prior appropriation has been adopted by the <br />legislature (see generally Water Code ss 100 et seq., ss 120 et seq., <br />ss 175 et seq.; Civil Code ss 141O(a) et seq.) and the courts. Yuba <br />River Power Co. v. Nevada Irr. Dist. (1929) 207 Cal. 521, 526; <br />Thayer v. California Development Co. (1912) 164 Cal. 117, 125-126. <br />Temescal Water Co. v. Department of Public Works (1955) 44 Cal.2d 90, <br />95. All waters in excess of the reasonable and beneficial needs oflaw- <br />ful users, including riparians, are considered unappropriated waters <br />and are available for appropriation for beneficial use. Stevinson Water <br />Dist. v. Roduner (1950) 36 Cal.2d 264, 269-270. Water that is diverted <br />pursuant to an appropriative right may be used on or in connection <br />with lands away from streams or outside a watershed, as well as on <br /> <br />The traditional rule among appropriators <br />is "first-in-time, first-tn-right. -" <br /> <br />Chapter 2 Water Rights in California 39 <br />
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