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'" ".t'lCf't') 1 Description and Methods of Implementation The CalifornIa Rule of Correl8tive Rights was announced in Katz v, Walkinshaw 2'~ The court first rejected the absolute ownership doctrine. stating: We cannot perceive how a doctrine offering so tittle protection to the investments in and product of such enterprises. and offering much temptation to others to capture the water on which they depend. can tend 10 promote developments in the future or preserve those already made. and. therefore. we do not believe that publiC policy or a regard for the general welfarp. dem8nds the doctrine?~ The court then went on to fashion a unique California Rule based on the American Rule of Reasonable Use The right of a landowner to use underlying groundwater was limited to the quantity that could be used in connection with the overlying land. In an important departure from the American Rule. however. the court in Katz held that excess or surplus water could be appropriated by public or private parties for use on distant lands. Among such appropriators. the rules that governed priOrity disputes on surface waters were to be applied to groundwater disputes. In conflicts between appropriators and overlying landowners. the court held that rights of landowners would be paramount to rights of appropriators If the landowners had used groundwater prior to the attempted appropri- ation. The court reserved the question of how disputes would be resolved between distant appropriators and overlying landowners whose use did not begin until after the appropriation. Finally, the California court announced that between overlYing landowners. in the event of an insufficient supply, each landowner was entitled to a "fair and Just proportion" of the water. The court did not discuss precisely how thiS ap- portionment of rights would be accomplished. Case Study California law continued to evolve through subsequent litigation. In Burr v. Maclay Rancho Water Co.,26 the California Supreme Court answered the question it had reserved in Katz. In Burr. the court held that a subsequent overlying user has priOrity over a prior appropriator for use on distant lands. and consequently, an appropri- ation is subject to the reasonable use of water on lands overlying the supply The court was con- cerned with the possibility that an appropriator might otherwise acquire the landowner's right by adverse use. The issue of prescriptive rights took on new importance in City of Pasadena v. City of A/hambra2T In Pasadena. the court held that an appropriative taking of non-surplus waler is wrongful. and hence, may ripen into a pre- scriptive fight if continued for the statutory period In continuous. adverse. notorious. open, and hostile fashion. The court went on to hold that the prescriptive statute begins to run once an overdrafl commences. and that all rights, whether overlYing. appropriative. or prescriptive. are subject to loss through prescription. Since however, original pumpers continued to wilh- draw water contributing to the overdraft. they too acquired rights by prescription. This doctrine. known as mutual prescription. essentially places all users of water on an equal footing who have used water for at least five years beyond the dale that an overdraft has commenced. In a bitter dissent to Pasadena. Judge Carter of the California Supreme Court argued that the decision was contrary to "every statute. principle. and rule of law" previously enacted or pro- mulgated As a result of Pasadena. the burden of an overdraft was shared byall users in proportion to their use of water With proportional reductions reqUIred. In Tehachapl.Cummings Water District I. Armstrong.:>8 the court clarified the doctrine t1f mutual prescnption as applied to disputes among overlying owners. The court held that. while appropriators can gain prescriptive rights against other appropriators or against overlying landowners. one overlying owner cannot establish a prescflptive right against another 3.7