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

pages 633-634. The same water rights are applicable to underground
stre3.llls as surface water. Pomeroy, pages 630, 632; Rank v. Krug
(1950) 90 F.Supp. 773, 787; Water Code ~~ 1200-1201; Prather v.
Hoberg (1944) 24 Cal.2d 549, 557-562.
Percolating waters. All underground waters other than under-
flow or underground streams are considered percolating waters.
Vineland. pages 494-495; Water Code ~~ 1200, 2500. Groundwater
is presumed to be percolating. Arroyo Ditch & Water Co. v. Baldwin
(1909) 155 Cal. 280, 284. Percolating waters include water in under-
ground water basins and groundwaters that have escaped from
streams. Montecito Valley Water Co. v. Santa Barbara (1904) 144
Cal. 578, 584.
Correlative rights doctrine. The use of percolating groundwater
in California is governed by the doctrine of "correlative rights and
reasonable use," which gives each overlying property owner a com-
mou right to the reasonable, beneficial use of the basin supply on
the overlying land. Katz, pages 134-136. This doctrine differs from
the English common law concept of groundwater first enunciated in
Acton v. Blunde!. Katz, page 141. The English court in Acton held
that groundwater was covered by the rule that a landowner owns
everything that lies beneath the surface of his or her land, including
rock, soil, and water. Accordingly, a landowner had no cause of
action against well interference caused by the pumping of another
landowner. This common law rule failed to provide protection from
those with deeper wells who could take unlimited quantities of
water. Katz, pages 141-143.
In Katz, the California Supreme Court rejected the English
common law doctrine of groundwater rights. Katz, page 116. In Katz,
the plaintiffs were overlying landowners who had used the ground-
water for twenty years for domestic and irrigation purposes. The
defendant extracted groundwater and transported the water off the
overlying basin for sale on distant land. The plaintiffs alleged that
continuation of the defendant's water exportation had destroyed the
artesian head of their wells, forcing them to spend money on pumping
and effectively prohibiting their continued use of the property.
The court in Katz concluded that the English common law rule
of absolute ownership of percolating groundwater was not suitable
for the "natural conditions" in California. Instead, the court adopted
the "rule of reasonable use of percolating waters," developing in the
process the doctrine of correlative rights. As between landowners
overlying a groundwater basin, all have equal rights to the water
and all must share in any water shortages. Katz, pages 134-136.

Groundwater, except lor an underground
stream or the underflow of a surface
stream, is considered to be "percolating"
water.

Most water pumped from groundwater
basins is percolating water and is not
subject to the state's permit system.

Owners of lands ollerlylng a groundwater
basin ha~'e a common right to pump from
the basin for use on their lands.

Chapter 2 Water Rights in California 49