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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 />basis of mutual prescription. What principles will apply in the future <br />(when a pueblo right does not control) remains uncertain. Wright v. <br />Goleta Water Dist. (1985) 174 Cal.App.3d 74, 90-91; Tehachapi- <br />Cummings, pages 1000-1002. <br />The Los Angeles v. San Fernando decision seems to indicate that <br />prescription against overlying owners may be limited by the owners' <br />"self help," that is, by exercising their rights and pumping water. 14 <br />Cal.3d 293, fn. 101. It is not clear, however, whether overlying rights <br />which have not been exercised can be lost by prescription. A cryptic <br />footnote states that the prescriptive rights of appropriators (cities <br />and public utility water companies) "would not necessarily impair <br />the private defendants' rights to ground water for new overlying <br />uses for which the need had not yet come into existence during the <br />prescriptive period." Los Angeles, page 293, fn. 100, italics in origi- <br />nal. One court has since ruled that it was improper to limit the un- <br />exercised rights of overlying users in a groundwater basin <br />adjudication. Wright v. Goleta Water Dist. (1985) 174 Cal.App.3d 74. <br />This decision also holds that prescription does not run until the <br />affected owner is "on notice" that the overdraft exists. Pasadena <br />found that the long-term lowering of water levels was sufficient to <br />charge owners with notice of a deficiency rather than a surplus. <br />However, in Los Angeles v. San Fernando, the hydrologiC situation <br />was more complex. During certain periods of time, the court found <br />that a surplus existed, interrupting any prescriptive period. It may <br />be only in similar circumstances that additional "notice" of overdraft <br />is required. The classic definition of overdraft was modified to re- <br />quire that extractions must exceed not only the safe yield of the <br />basin but also "any temporary surplus." The Pasadena definition of <br />safe yield was confirmed, namely, that it is the "maximum quantity <br />of water which can he withdrawn annually... without causing an <br />undesirable result." Los Angeles, pages 278, 280, 282. <br />The court also reiterated the rule allowing the recapture of <br />imported water, including the return flows from such deliveries, <br />whether the water is sold for irrigation or urban uses. Imported water, <br />and the return flows from imported water, must be separated from <br />native waters in determining safe yield. Los Angeles pages 258-59, 288. <br /> <br />Springs. A spring is defined as a damp, marshy area where under- <br />ground waters seep to the surface as a stream or small pool. <br />Harrison v. Chaboya (1926) 198 Cal. 473, 476; De Wolfskill v. Smith <br />(1907) 5 Cal.App. 175, 181. Rights in spring waters are considered <br />rights in real property. Stepp v. Williams (1921) 52 Cal.App. 237, <br /> <br />Chapter 2 Water Rights in California 55 <br />
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