Laserfiche WebLink
<br />" ') "I" ,. r) <br />\.. ) <br /> <br />Description and Methods of <br />Implementation <br /> <br />The California Rule of Correlative Rights was <br />announced in Katz v. Walkinshaw.24 The court <br />first rejected the absolute ownership doctrine. <br />staling: <br /> <br />We cannot perceive how a doctnne offering <br />so little protection to the investments in and <br />product of such enterprises. and offering much <br />temptation 10 others to capture the water on <br />which they depend. can tend to promote <br />developments in Ihe future or preserve those <br />already made. and. therefore. we do not <br />believe that public policy or a regard for the <br />general welfare demands the doctrine."" <br /> <br />The court then went on to fashion a unique <br />California Rule based on the American Rule of <br />Reasonable Use. The right of a landowner 10 use <br />underlying groundwater was limited to the <br />quantity that could be used in connection with <br />the overlying land. In an important departure <br />from the American Rule, however, the court in <br />Katz held that excess or surplus water could be <br />appropriated by public or private parties for use <br />on distant lands. Among such appropriators, the <br />rules that governed priority disputes on surface <br />waters were to be applied to groundwater <br />disputes. In conflicts between appropriators and <br />overlying landowners, the court held that rights <br />of landowners would be paramount to rights of <br />appropriators if the landowners had used <br />groundwater prior to the attempted appropri- <br />ation. The court reserved the question of how <br />disputes would be resolved between distant <br />appropriators and overlying landowners whose <br />use did not begin until alter the appropriation. <br />Finally. the California court announced that <br />between overlying landowners, in the event of an <br />insufficient supply, each landowner was entitled <br />to a "fair and just proportIon" of the water. The <br />court did not discuss preCisely how this ap- <br />portionment of rights would be accomplished. <br /> <br />Case Study <br /> <br />California law continued to evolve through <br />subsequent litigation. In Burr v. Mac/ay Rancho <br />Water Co.,26 the California Supreme Court <br />answered the question It had reserved In Katz. In <br />Burr, the court held that a subsequent overlying <br />user has priOrity over a prior appropriator for use <br />on distant lands, and consequently. an appropri- <br />ation is subject to the reasonable use of water on <br />lands overlying the supply. The court was con- <br />cerned with the possibility that an appropriator <br />might otherwise acquire the landowner's right by <br />adverse use. <br /> <br />The issue of prescriptive rights took on new <br />importance in City of Pasadena v_ City ot <br />Alhambra27 In Pasadena. the court held that an <br />appropriative taking of non-surplus water is <br />wrongful. and hence. may flpen into a pre- <br />scriptive right if continued for the statutory <br />period in continuous. adverse. notorious. open, <br />and hostile fashion. The court went on to hold <br />that the prescriptive statute begins to run once <br />an overdraft commences. and that all rights. <br />whether overlying, appropriative. or prescriptive. <br />are subject to loss through prescription. Since <br />however. onglnal pumpers continued to with- <br />draw water contributing to the overdraft, they too <br />acquired rights by prescription. This doctrine, <br />known as mutual prescription, essentially places <br />all users 01 water on an equal footing who have <br />used water for atleasl five years beyond the date <br />that an overdraft has commenced. In a bitter <br />dissent to Pasadena. Judge Carter of the <br />California Supreme Court argued that the <br />decision was contrary to "every statute. principle. <br />and rule of law" previously enacted or pro. <br />mulgated. As a result of Pasadena. the burden 01 <br />an overdraft was shared by all users in proportion <br />to their use of water with proportional reductions <br />required. <br /> <br />-. ~w~~~~.~~'" <br />", ,'~~~.j" <br />-r-.., f', . ~,. ',,:\'f-'11 . <br />." ... ~ ~ ~"'t~~ <br />. - ~. . ~/';""'~ <br />__~f \ .. ~ <br />-. -.. <br /> <br /> <br />. < <br /> <br />~. <br />, - <br />.- <br />... ,..:-...... <br /> <br />In Tehachapl.Cummings Water District I. <br />Armstrong.28 the court clarified the doctrine of <br />mutual prescription as applied to disputes <br />among overlying owners. The court held that. <br />while appropriators can gain prescriptive rights <br />against other appropriators or against overlying <br />landowners. one overlying owner cannot <br />establish a prescriptIve right against another <br /> <br />3.7 <br />