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

Tn the Pasadena case, mutual prescription
achieved an "equitable apportionment" of
the available supply.

Tn 1975, the California Supreme Court
severely limited the doctrine of mutual
prescription, holding that the water rights
of public agencies and public utilities were
not subject to prescription.

54 CALIFORNIA WATER

The court rejected the notion that water must be allocated strictly on
the basis of priority of appropriation, noting that such application of
appropriative rules would result in an unequal sharing of the burden
of curtailing water use. Specifically, later appropriators (including
public water suppliers) could be completely eliminated while ear-
lier appropriators might not be impacted at all. Therefore, the court
held that under the conditions of the overdraft all of the overlying
and appropriative users had acquired prescriptive rights against
each other, that is, mutual prescription, whereby all uses merged
into prescriptive rights without priorities. Pasadena, pages 928-33.
Unfortunately, the concept of mutual prescription can encourage
greater groundwater pumping than may be necessary, "a race to the
pumphouse" mentality. Where rights depend upon recent pumping,
the incentive is to maintain high production in order to prevent loss of
rights to others. However, groundwater rights in several Southern
California water basins were subsequently adjudicated, by stipulation,
on the basis of mutual prescription. These judgments provide perma-
nent watermaster administration of groundwater extractions under
judicially approved and supervised physical solutions. They may in-
clude authority to fund and operate programs to control groundwater
overdrafts by replenishment with imported water14
Los Angeles v. San Fernando. In 1975, the California Supreme
Court significantly limited the mutual prescription doctrine. The court
interpreted Civil Code section 1007 as preventing prescription of
groundwater rights owned by public agencies and public utilities. Los
Angeles v. San Fernando, page 274. This case began in 1955, when
the City of Los Angeles brought snit against the Cities of San Fer-
nando, Glendale, Burbank, and other pumpers to declare that it had
a prior right to all groundwater in the upper Los Angeles river area
and to enjoin them from extracting groundwater without Los Angeles'
permission. Los Angeles relied upon its "pueblo rights," while the de-
fendants urged that the Pasadena doctrine of mutual prescription
gave them rights to proportionate shares of the groundwater supply.
In a lengthy decision, Los Angeles' claims based upon its pueblo
rights were upheld, but the court also reviewed groundwater law
generally and overturned the trial court's application of mutual
prescription, holding that public agencies could not lose water rights
through prescription. Where public agencies or public utilities are
involved, groundwater rights may no longer be adjudicated on the

14 Schneider, "Groundwater Rights in California," Governor's Commission
to Review California Water Rights. 1977, pages 19-25.