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

considered "higher" than others. Water Code ~ 106. The priority
clearly applies if applications are competing for the same water, but
no case law controis its application during water shortages. However,
in Lake Don Pedro CSD v. Merced Irr. Dist. (Mariposa County Sup. Ct.
(1992) No. 7066), the court entered a temporary restraining order
requiring the reduction of reservoir releases for agricultural uses in
order to guarantee a municipal supply.
As between statutory appropriators (between 1872 and 1913)
and later Water Code appropriators, the first to post and record
the notice or to file the application for a permit prevails. Civ. Code
~~ 1418-1419 (1872); Water Code ~ 1450.
As between statutory and nonstatutory appropriators from 1872
to 1914, the former had priority if the notice was posted and recorded
before the nonstatutory appropriator actually diverted the water and
put it to a beneficial use.9 However, the nonstatutory appropriator
had priority to the extent of water diverted and put to beneficial use
before the statutory appropriator had posted and recorded the notice
as required by code. Haight v. Costanich (1920) 184 Cal. 426.
Senior appropriators cannot extend their use or make substantial
changes so as to interfere with the rights of junior appropriators.
Senior v. Anderson (1900) 130 CaI. 290, 297. As between upper and
lower appropriators, the first in time rule applies regardless of
location on the watercourse. Hill v. King (1857) 8 Cal. 336, 337 -338.

Limitations on Appropriative Rights
DivelSion/due diligence. To establish an appropriative right, the
appropriation must be completed within the time required by the
State Board permit, with due diligence applied to the construction of
diversion works. Water Code ~~ 1395-1398. Appropriative water
rights attach only to water actually used. No appropriative rights
attach before the completion of the appropriation, hut often "in-
choate" (or pending) rights do attach if there is due diligence in the
construction of diversion works. Water Code ~~ 1460, 1462-1464.
For appropriative rights acquired after 1914, the Water Code
provides that actual construction work upon the project must begin
within the time specified in the permit to appropriate water, not less
than sixty days from the date of the permit. Construction of the
diversion works and utilization of the water for beneficial purposes
must be done with due diligence in accordance with the statute, the
terms of the permit, and the rules and regulations of the State
Board. Water Code ~~ 1395-1398. Diligence is primarily a question

9 Rogers and '1ichols, ~ 209, pages 301.

Appropriatioe rights require due diligence
in the construction of necessary facilities
and the use of the water.

Chapter 2 Water Rights in California 45