BOARD01119

• Board Meeting Date: 2/11/1965
• Description: Minutes
• Board Meetings - Doc Type: Meeting

I

with reference to those nontributary ground
waters, the state would not be in any position
to regulate them at all under the police power.
It's been held by our courts over the years that
the Constitution itself with reference to waters
of natural streams is self-executing. To me
that means, and we have cases that have recog-
nized this, that the diversion and appropriation
to a beneficial use is the measure of the right
and it means that a person can appropriate water
and use it without the benefit of any statute.
Now we know what kind of a chaotic state we
would be in if we had no regulations of these
waters. We have to visualize a dual concept,
that the waters belong to the public and it's
the use of these waters that is dedicated to
the people.

On surface streams we follow the appropria-
tion doctrine. There is only one doctrine of
underground water with which I am familiar that
doesn't recognize a use as being the measure
of the right and that is the old common law own-
ership, that is, that a person who owns to the
sky owns to the center of the earth everything
that's under it. But water is flowing under
this land; it's constantly in a state of flux.
So we know that as a first step, if we are going
to have any effective regulation, any integra-
tion of our surface and underground waters where
we know that it is a part of the same source
where it is tributary, we have to start with the
concept that the waters belong to the public
and are dedicated to the use of the people.

I

The four theories briefly of underground
water are the common law theory which I have
already mentioned; the appropriation theory
which permits the person to use the water wherever
he may within his appropriative rights; the
correlative use theory which is followed in
California that landowners over an aquifer have
an equitable right to make a use of that water
on the lands over the aquifer; the American
doctrine of reasonable use which is followed in
a good many of these western states that the