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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 />has interpreted "reasonable and beneficial use" to include periodic <br />or seasonal storage (Moore v. California Oregon Power Co. (1943) 22 <br />Cal.2d 725, 734-735; Colorado Power Co. v. Pacific Gas & Blec. Co. <br />(1933) 218 Cal. 559, 564-566) as well as rental and sale. Joerger v. <br />Pacific Gas & Blec. Co. (1929) 207 Cal. 8, 34. <br /> <br />Open and notorious use. This requirement is intended to put the <br />original owner on notice of an adverse claim. In order to satisfy <br />this requirement, the claimant must show either that the owner had <br />actual notice of the prescription or that the use was sufficiently open <br />and notorious for the court to presume that the owner knew of its <br />existence. Copeland v. Falrvlew Land & Water Co. (1913) 165 Cal. <br />148, 163-164. If it can be demonstrated that the owner had actual <br />knowledge of an adverse claim, the claimant does not have to show <br />that the use was open and notorious. Fogarty v. Fogarty (1900) 129 <br />Cal. 46, 50. To demonstrate knowledge of an adverse claim, the <br />claimant may impute the knowledge an agent sbared with the agent's <br />principal. Montecito Valley, page 597. <br />In Pasadena v. Alhambra (1949) 33 Cal. 2d 908, overdraft was <br />found to have commenced in 1913-14, and thereafter the progressive <br />lowering of groundwater levels was held sufficient to put pumpers on <br />notice that no surplus existed and that the appropriations causing the <br />overdraft were invasions of the rights of overlying owners and prior <br />appropriators. However, in City of Los Angeles v. City of San Fer- <br />nando (1975) 14 Cal.3d 199, the Supreme Court held that to establish <br />the required element of adversity pumpers must be on notice that <br />an overdraft exists- <br /> <br />Tbe findings that the takings from the basin were open and noto- <br />rious and were continuously asserted to be adverse does not <br />establish that the owners were on notice of adversity in/act caused <br />by the actual commencement of overdraft. 14 Cal.3d, page 283. <br /> <br />No case has since determined what may be required to put users <br />on notice of an existing overdraft. The fact that surplus water <br />temporarily existed may have influenced the Los Angeles decision. <br />An open and notorious use cannot be concealed. Therefore <br />the use of an underground pipeline has been held insufficient to <br />satisfy this requirement. Powers v. Perry (1909) 12 Cal.App. 77, 83. <br />Similarly, the construction of a diversion ditch does not qualify as <br />open and notorious until the claimant actually uses it to divert the <br />water. Senior v. Anderson (1896) 115 Cal. 496, 505-506. The courts <br />have held that the use of the entire flow of a watercourse can con- <br />stitute presumptive notice of an adverse claim unless the lower user <br /> <br />60 CALIFORKIA WATER <br />
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