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Last modified
5/14/2010 8:58:17 AM
Creation date
9/30/2006 10:18:55 PM
Metadata
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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 /> <br />The underflow of a surface stream is <br />subject to riparian or appropriative rules. <br /> <br />48 CALIFORNIA WATER <br /> <br />users for reasonable, beneficial purposes, similar to riparian rights. <br />Katz v. Walkinshaw (1903) 141 Cill. 116, 134-136. Groundwater uses <br />are limited to extracting only the amount necessary for reasonable, <br />beneficial uses on the overlying property. Katz, pages 135-136. <br />However, groundwater that is surplus to the needs of overlying own- <br />ers can be appropriated and used away from the overlying property. <br />Pasadena, pages 925-926. Regulation of groundwater extraction has <br />traditionally been left to the courts under common law principles. <br /> <br />Definition of Groundwater. California recognizes several legal clas- <br />sifications of groundwater (depending on its occurrence in various <br />geologic formations) which govern the application of water rights <br />laws. For legal purposes, underground waters are divided into three <br />categories: (1) the underflow of a surface stream; (2) a definite under- <br />ground stream; and (3) percolating waters. Since all underground <br />water is generally presumed to be percolating water, the burden of <br />proof is on the party seeking to prove that the water is underflow or <br />a definite underground stream. Arroyo Ditch & Water Co. v. Baldwin <br />(1909) 155 Cal. 280, 284. <br />Underflow of a sutface stream. The underflow of a surface <br />stream consists of the water in the soil, sand, and gravel in the bed <br />of a stream in its natural state and essential to its existence. City of <br />Los Angeles v. Pomeroy (1899) 124 Cal. 597, 623-635. To constitute <br />underflow, the flow must be in a known and definite channel. Water <br />Code S 1200. The underflow may include lateral extensions of the <br />stream on each side of the surface channel if its movement and <br />location can be determined. Larsen v. Apollonio (1936) 5 Cal.2d 440, <br />444; Peabody, page 375. <br />The party who owns the right to the surface flow has the same <br />rights to the underflow. Rancho Santa Margarita v. Vail (1938) 11 <br />Cal.2d 501, 556, 560-561; Peabody, pages 375-76; Vineland Irr. <br />Dist. v. Azusa Irr. Co. (1899) 126 Cal. 486, 495. <br />Underground streams. Groundwater also includes an underground <br />stream which flows in a known and definite channel in a subterra- <br />nean watercourse. Cave v. Tyler (1905) 147 Cal. 454, 456; Water Code <br />S 1200. A definite channel is defined as a "contracted and bounded <br />channel" and knowledge must exist as to the course of the stream by <br />"reasonable inference."12 Proof of the existence of an underground <br />stream is shown through the direction of flow, confinement within the <br />watercourse banks, and flow within a defined channel. Pomeroy, <br /> <br />12 Hutchins, pages 419-420. <br />
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