CALIFORNIA WATER RESOURCESASSIGNMENT 5

Introduction to the Law of Prior Appropriation

“The Middle West, geographically and socially and economically, was simple; the West was complex. Instead of the gentle roll of the great valley there were high plains, great mountain ranges, alkali valleys, dead lake bottoms, alluvial bench-lands. Instead of trees or oak openings there were grasslands, badlands, timbered mountains, rain forests and rain-shadow deserts, climates that ran the scale from Vermont to the Sahara. And more important than all of the variety which was hostile to a too-rigid growth pattern was one overmastering unity, the unity of droughth. With local and minor exceptions, the lands beyond the 100th meridian received less than twenty inches of annual rainfall, and twenty inches was the minimum for unaided agriculture. That one simple fact was to be, and still is to be, more fecund of social and economic and institutional change in the West than all of the acts of all the Presidents and Congresses from the Louisiana Purchase to the present.”

Wallace Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (1954)

Reading:

Irwin v. Phillips

Town of Antioch v. Williams Irrigation District

Notes:

1. The excerpt from Beyond the Hundredth Meridian provides a vivid contrast between the eastern and midwestern states, where the American law of riparian rights developed (and contin-ues to exist), and the American West, which gave birth to the doctrine of prior appropriation. As Stegner observes, east of the 100th Meridian agriculture can occur under natural conditions. In most areas to the west of the "dry line," the land must be irrigated for agriculture to be profitably pursued. This meteorological fact dictated the development of the common law of water rights in the western states. All of those states recognized the doctrine of prior appropriation as the principal basis on which one could acquire the rights to use water. Indeed, as described in detail below, in most of the western states the courts or the legislature rejected the doctrine of riparian rights altogether.

2. What is it about the law of riparian rights that makes it ill-suited to the geography, hy-drology, and economies of the American West? The Colorado Supreme Court addressed this question in Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

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At issue in Coffin were the rights to water from the St. Vrain Creek. Coffin owned ripar-ian land along the creek and claimed superior rights to water based on riparian rights. Left Hand Ditch had constructed a dam on St. Vrain Creek above Coffin’s property and diverted the water to an adjacent watershed where its land was located. Under the law of riparian rights, Left Hand Ditch would have no rights to water from St. Vrain Creek because water may be used only on ri-parian land that is within the watershed from which the water originates. According to the doc-trine of prior appropriation, Left Hand would have superior rights to Coffin, because it began di-verting the water before Coffin commenced his uses. Both parties used the water for irrigation of crops.

The Colorado Supreme Court ruled in favor of Left Hand Ditch as the earlier appropriator and rejected Coffin’s argument that his ownership of riparian land carried with it riparian water rights. The court explained its decision both on the basis of state and federal law and on the physical realities of the new state of Colorado:

The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property. It has always been the policy of the national, as well as the territorial and state governments, to encourage the diversion and use of water in this country for agriculture; and vast expenditures of time and money have been made in reclaiming and fertilizing by irrigation portions of our un-productive territory. Houses have been built, and permanent improvements made; the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doc-trine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.

The right to water in this country, by priority of appropriation thereof, we think it is, and has always been, the duty of the national and state governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of ir-rigation. It is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of the public domain; and it is immaterial whether or not it be mentioned in the patent and expressly excluded from the grant.

The act of congress protecting in patents such right in water appropriated, when recognized by local customs and laws [i.e., the Mining Act of 1866], "was rather a volun-tary recognition of a pre-existing right of possession, constituting a valid claim to its con-tinued use, than the establishment of a new one." Broder v. Notoma W. & M. Co., 11 Otto, 274.

We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, un-known to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the

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qualifications contained in the constitution, a prior right thereto, to the extent of such ap-propriation.

3. Irwin v. Phillips was the first case to recognize the doctrine of prior appropriation, which the miners had devised to apportion water as well as to resolve competing claims to gold claims. The court based its decision in part on an 1851 statute in which the California Legislature recog-nized the "customs, usages or regulations established and in force at the bar, or diggings" as the basis for resolving disputes in mining country. 1851 Cal. Stat. ch. 5, § 621.

4. Irwin was a highly utilitarian opinion, designed to facilitate the state's most important in-dustry. Five aspects of the Supreme Court's opinion are worth noting:

a. Physical realities: The court emphasized that the relative scarcity of water and the need to make use of it away from the streams and rivers dictated a substantial de-parture from the law of riparian rights.

b. Custom: The court largely deferred to the system of law that the miners had estab-lished informally among themselves.

c. Protection of reliance interests: The court stated that it was important to protect both the miners' rights of first occupancy and their investment in “costly artificial works” constructed to divert the water and transport it to the place of use.

d. Fairness; The court observed that subsequent appropriators settle and use water with notice of the claims by prior occupants.

e. Promotion of Economic Development; The court recognized that mining was vital to the economic development of the state and devised its water rights law to facili-tate and to promote mining.

5. In cases following Irwin, the California Supreme Court expressly recognized the doctrine of riparian rights. See, e.g., Crandall v. Woods, 8 Cal. 136 (1857); Lux v. Haggin, 69 Cal. 255, 379-87 (1886). Why did the decision in Irwin not abolish riparian rights in California?

6. In a 1922 address to the American Bar Association, Lucien Shaw, Chief Justice of the California Supreme Court and author of many important water law opinions, responded to the ar-gument that the Court should have overruled the doctrine of riparian rights in Lux v. Haggin on the ground that riparian rights limit the use of water on valuable non-riparian land and therefore poorly serve the economic interests of the state. Justice Shaw stated:

The obvious answer on this question of policy is that the objection comes too late, that it should have been made to the Legislature in 1850, prior to the enactment of the statute adopting the common law. When that was done, the riparian rights be-came vested, and thereupon the much more important public policy of protecting the right of property became paramount and controlling.

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Lucien Shaw, The Development of the Law of Waters in the West, 10 Calif. L. Rev. 443, 455 (1922). Do you agree?

7. The question whether riparian rights exist in the western states has both a state law and a federal law component. In Coffin, the Colorado Supreme Court concluded, as a matter of state and federal law, that the ownership of riparian land does not carry with it any entitlement to wa-ter. Water rights must be acquired separately through an appropriation of the water to a benefi-cial use. In contrast, the California Supreme Court reached the opposite interpretation of federal and state law in the famous case of Lux v. Haggin, 69 Cal. 255 (1886).

The principal issue in Lux was whether Henry Miller’s and Charles Lux’s ownership of land that was riparian to the Kern River gave them superior water rights to those of James Ben-Ali Haggin, who claimed to be the first appropriator of water from the river. The California Supreme Court held as a matter of state law that riparian rights generally take precedence over the appropriative rights. On the federal law question whether the federal patents that granted the land in question to Miller and Lux also conveyed water rights, the Court reasoned:

It has often been held by this court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on the public lands of the United States, and of their beds. Recog-nizing the United States as the owner of the lands and waters, and as therefore authorized to per-mit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. It has never been held that the right to appropriate waters on the public lands of the United States was derived directly from the state of California as the owner of innavi-gable streams and their beds. And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully applied on the public lands of the United States,1 such rights have always been claimed to be derived by private persons under the act of Congress, from the recognition accorded by the act, or from the acquiescence of the general government in previ-ous appropriations made with its presumed sanction and approval.

If the United States since the treaty with Mexico has been the owner of the innavigable streams and their beds (in trust for the state or absolutely), or has been the owner thereof as a con-sequence of the act admitting the state into the Union, or of the state act of 1850, or as a conse-quence of both those statutes taken together, the same is true as to other riparian proprietors, at least since the date of the first-named act. They have been recognized as such owners by our courts. Prior and subsequent to the enactments of the Civil Code with respect to appropriations of water,2 the rights to the use of water by private riparian proprietors, as between themselves, have repeatedly been judicially determined by reference to the common-law rules on the subject . . . .

And if the United States, since the date of the admission of the state, has been the owner of the innavigable streams on its lands, and of the subjacent soils, grants of its lands must be held to carry with them the appropriate common-law use of the waters of the innavigable streams

1 [The Court refers here to the Mining Act of 1866.—ed.]

2 [These provisions are now codified in the Civil Code §§ 1400-1407.—ed.]

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thereon, except where the flowing waters have been reserved from the grant. To hold otherwise would be to hold, not only that the lands of the United States are not taxable, and that the primary disposal of them is beyond state interference, but that the United States, as a riparian owner within the state, has other and different rights than other riparian owners, including its own grantees.

The government of the United States has the absolute and perfect title to its lands. Un-less, therefore, running waters are reserved, they pass by grant or patent of the United States. [Id. at 338-41.]

Later in the opinion, the Court addressed the question whether Congress had disclaimed riparian rights by its enactment of the Mining Act of 1866, as amended by the Mining Act of 1870:

VIII. It has never been held by the Supreme Court of the United States, or by the Supreme Court of this state, that an appropriation of the water on the public lands of the United States (made af-ter the act of Congress of July 26, 1866, or the Amendatory Act of 1870) gave to the appropriator the right to the water appropriated, as against a grantee of riparian lands under a grant made or issued prior to the act of 1866; except in a case where the water so subsequently appropriated was reserved by the terms of such grant.

Since, as before September 28, 1850,3 the United States has been the owner of lands in California with power to dispose of the same in such manner and on such terms and conditions (not interfering with vested rights derived from the United States) as it deemed proper. But nei-ther the legislation of Congress with respect to the disposition of the public lands, nor its apparent acquiescence in the appropriation by individuals of waters thereon, subsequent to the act of Sep-tember, 1850, granting the swamp-lands to the state, can affect the title of the state to lands and waters granted by that act. Neither the Supreme Court of the United States nor the Supreme Court of California has ever held in opposition to this view. * * *

In Broder v. Water Company, supra, the claim of the appropriator was recognized in the grant to the railroad company, and prior to the initiation by the plaintiff of proceedings to secure a pre-emption. In the case at bar the grant of the lands to the state (containing no reservation of the waters of flowing streams express or to be implied from its terms) was made nearly thirty years before the first appropriation of water by the defendant, which was after the act of Congress of July, 1866, and the amendatory act of 1870. Osgood v. Water Company, 56 Cal. 571, it was held that where a person acquired a right by appropriation to water upon the public lands of the United States, before the issuance of a patent to another for lands through which the stream ran, the patentee's rights were, "by express statutory enactment, subject to the rights of the appropriator." The court cited the amendatory act of Congress, above referred to. * * *

Both Broder v. Water Company and Osgood v. Water Company are (by strongest impli-cation) authority for the statement that one who acquired a title to riparian lands from the United States prior to the act of July 26, 1866, could not (in the absence of reservation in his grant) be deprived of his common-law rights to the flow of the stream by one who appropriated its waters after the passage of that act.

3 [The Swampland Act of 1850 granted to the states title to lands classified as swamp or overflow lands.—ed.]

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Much stress is laid by counsel on the language used in Broder v. Water Company, supra, with reference to the clause in the act of 1866, that water rights recognized or acknowledged by the local customs, etc., "shall be maintained and protected," "was rather a recognition of a pre-ex-isting right of possession, constituting a valid claim to its continued use, than the establishment of a new one." But this language is to be interpreted in view of the context. The language cannot be construed as a recognition by the court of vested rights in appropriators of water, created by mere appropriation and independent of statute. The case proceeds on the assumption that neither the plaintiff nor the defendant had any rights except such as were granted or recognized by acts of Congress. It holds that appropriators of water from streams on (or flowing to) the lands granted by the act of 18644 were "recognized," or admitted to have rights which were protected by that act, because the act by its terms reserved from the grant to the railroad company every "lawful claim," that one who had been permitted to divert water from those lands had a claim which was not in itself unlawful, and that the reservation included "every honest claim evidenced by acts of possession." There is no statement in the opinion in Broder v. Water Company, supra, that, ex-cept for the reservation found in the act of 1864, and the provision in the act of 1866, the defen-dant would have any right to the water as against the grantees named in the act first named or their successors in interest. The court holds that Broder acquired no right by virtue of his pre-emption, because his proceedings to secure it were begun after the act of 1866—which recog-nized the prior appropriation of the water as being a right in the appropriator—and that Broder ac-quired no right under the railroad grant, because the water previously appropriated was reserved in that grant. [Id. at 344-49]

8. According to Lux v. Haggin, if there is not enough water for both, which party prevails in a dispute between a riparian and an appropriator?

a. Does the answer depend on whether the appropriation began before or after the land was patented to the riparian?

b. Is this a question of California or federal law?

9. Following the decisions in Coffin v. Left Hand Ditch Co. and Lux v. Haggin, those west-ern states that rejected riparian rights were known as “Colorado Doctrine” states, and those that recognized riparian rights were called “California Doctrine” states. The Colorado Doctrine states were: Arizona, Montana, Nevada, New Mexico, Utah, and Wyoming. The California Doc-trine states were: Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington. At some point during the past 130 years, all of these states (including Califor-nia) came to view riparian rights as a drag on economic development. Not only did the place of use restrictions limit the use of water for irrigation of nonriparian land and for cities and indus-try, but the dormant aspect of the riparian right also undermined the security of other water rights.

The California Doctrine states responded in a variety of ways to these problems. The Supreme Court of Washington interpreted two Washington appropriation statutes that expressly recognized riparian rights as protecting only exercised riparian rights. The Court held that unex-ercised riparian rights were subordinate to all existing appropriative rights. This decision effec-tively abolished the dormant portion of riparian rights in Washington. State ex rel. Liberty Lake

4 [This statute authorized grants of federal lands to certain railroads.--ed.]

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Irrigation Co. v. Superior Court, 47 Wash. 310, 91 P. 968 (1907). In two more recent cases, the Washington Supreme Court held that the extinguishment of riparian rights for nonuse or for un-reasonable use is not a taking of property. In re Determination of the Rights to the Use of the Surface Waters of the Dead Man Creek Drainage Basin, 103 Wash. 2d 686 (1985); In re Deter-mination of the Rights to the Use of the Surface and Ground Waters of the Marshall Lake and Marshall Creek Drainage Basin, 121 Wash. 2d 459 (1993).

The Supreme Courts of Oregon and South Dakota ruled that Congress had abolished ri-parian rights for all land patented (i.e., transferred from the federal government into private own-ership) after the enactment of the Desert Lands Act of 1877, 19 Stat. 377, § 1 (1877). Hough v. Porter, 51 Ore. 318, 98 P. 1083 (1909); Cook v. Evans, 45 S.D. 31, 185 N.W. 262 (1921). In California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), the United States Supreme Court held that, in enacting the Desert Lands Act, Congress neither recognized nor abolished riparian rights for federal lands patented to private owners. Rather, Congress in-tended to defer to state water rights law. Thus, patentees of federal land would have riparian rights in California Doctrine states, but not in Colorado Doctrine states.

Oregon did not have to revisit its decision in Hough v. Porter, because its 1909 water code had abolished unexercised riparian rights. The Oregon Supreme Court affirmed the consti-tutionality of this legislation in In re Hood River, 114 Ore. 112, 227 P. 1065 (1924), appeal dis-missed, 273 U.S. 647 (1926). In contrast, the South Dakota Supreme Court held in Platt v. Rapid City, 67 S.D. 245, 291 N.W. 600 (1940), that federal patentees were entitled to riparian rights as a matter of state (and earlier territorial) law. The South Dakota legislature enacted a statute in 1955, however, that limited riparian rights to “water having actually been applied to any beneficial use on March 2, 1955 or within three years immediately prior thereto to the extent of the existing beneficial use made thereof.” S.D. Comp. Laws § 46-1-9. The South Dakota Supreme Court rejected constitutional challenges to the statute in Belle Fourche Irrigation Dist. v. Smiley, 84 S.D. 701, 176 N.W.2d 239 (1970).

The legislatures of Kansas, Nebraska, Oklahoma, and Texas also enacted legislation prospectively to abolish riparian rights. All of these statutes were upheld against constitutional challenge, except for Oklahoma's. Baumann v. Smrha, 145 F. Supp. 617 (D. Kan. 1956); aff’d, 352 U.S. 863 (1956); Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), cert. de-nied, 375 U.S. 7 (1963); Wasseburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966); In re Water Rights of Guadalupe River Basin, 642 S.W.2d 438 (Tex. 1982).

In Franco-American Charolaise Ltd. v. Oklahoma Water Resources Board, 855 P.2d 568 (Okla. 1993), the Oklahoma Supreme Court struck down a 1963 statute that eliminated unexer-cised riparian rights, except for new domestic uses of water. According to the Court:

Although the 1963 water law amendments provided a mechanism for a riparian owner to "perfect" all beneficial uses initiated prior to the legislation, that mechanism falls short of protect-ing the riparian owner's common-law appurtenant right. The mechanism is constitutionally inade-quate first of all because the full sweep of the riparian right is much broader than the validation mechanism could ever shield. The heart of the riparian right is the right to assert a use at any time as long as it does not harm another riparian who has a corresponding right. Further, yesterday's reasonable use by one riparian owner may become unreasonable tomorrow when a fellow riparian

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owner asserts a new or expanded use. After the 1963 amendments, the riparian owner who wants to expand a use or assert a new use may do so only as an appropriator. His use is not judged by its reasonableness but only by its priority in time.

Furthermore, the validation mechanism attempted to forever set in stone the maximum amount of stream water the landowner, as a riparian owner, can use. Any use asserted by the landowner, as an appropriator, is either denied because no water is available or is given a lower priority than all other uses, including those of appropriators who are non-riparian to the stream. It matters not that the riparian owner's use is reasonable when compared with prior uses. This result is antithetical to the very nature of the common-law riparian right, which places no stock in the fact of past use, present use, or even non-use.

In the Water Commission Act of 1913, the California Legislature attempted to extinguish all dormant riparian rights that were not exercised for any ten consecutive year period after the enactment of the statute. 1913 Cal. Stat. 1012. In Tulare Irrigation District v. Lindsay-Strath-more Irrigation District, 3 Cal. 2d 489, 531 (1935), however, the California Supreme Court held that the ten-year forfeiture provision was contrary to the express recognition of riparian rights in the 1928 amendment to the California Constitution (now codified as Article X, Section 2) and therefore was unconstitutional. We will study California's subsequent efforts to limit riparian rights later in the course.

10. The United States Supreme Court did not resolve the question whether the Colorado Supreme Court or the California Supreme Court had correctly interpreted the Mining Acts of 1866 and 1870 until its decision in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). The Supreme Court held that, in enacting these statutes (as well as the Desert Land Act of 1877), Congress intended to defer to state law on the question whether ripar-ian rights exist on land patented by the United States.

11. Following all of these developments, new uses of water may be undertaken today pur-suant to riparian rights only in California and Oklahoma. In California, riparian rights generally have first call on the waters available for consumptive uses. After the needs of all riparians are satisfied, water may be diverted by appropriators in order of priority of appropriation. As we will study in the next several assignments, however, all water rights are limited by the require-ments of reasonable and beneficial use set forth in set forth in Article X, Section 2 of the Califor-nia Constitution.

12. Which system of water rights is better—a pure appropriation system, such as that em-ployed in most of the western states, or a mixed system of riparian and appropriative rights, which we have in California? What are the advantages and disadvantages of each?

13. In its pure form, the doctrine of prior appropriation provides that the user who is first-in-time also is first-in-right. This means that in times of shortage, junior appropriators must curtail their diversions in reverse order of priority until the shortage is eliminated. See United States v. State Water Resources Control Board, 182 Cal. App. 3d 82, 131 n.25 (1986). Appropriative rights are created by use, rather than by ownership of land as in the riparian system. There are no place of use restrictions on the exercise of appropriative rights; thus, water that is appropri-

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ated from one river may be used on lands and in watersheds far removed from the watershed-of-origin.

14. California recognizes two basic types of appropriative water rights: (1) appropriations commenced before December 19, 1914, the effective date of the Water Commission Act of 1913; and (2) appropriations commenced after that date, which must be based on a permit or license is-sued by the State Water Resources Control Board or its predecessor agencies. The former are known as "pre-1914 appropriative rights"; the latter as "post-1914 rights" or "permitted" and "li-censed" rights.

Originally, appropriators established their water rights simply by diverting water from a stream and applying the water to a reasonable use. Under this common law system, the priority of each appropriator was said "to relate back" to the date on which the appropriator took the first act of constructing his water diversion project—if the appropriator completed the project with due diligence. See Kelly v. Natoma Water Co., 6 Cal. 105, 108 (1856). The California Supreme Court subsequently recognized publication of a notice of intent to appropriate water as a "first act" of construction. De Necochea v. Curtis, 80 Cal. 397, 401, 20 P. 563, 565 (1889).

In the 1872 amendments to the Civil Code, 1871-1872 Cal. Stat. 622, the California Leg-islature codified the law of prior appropriation, declaring that "[a]s between appropriators, the one first in time is the first in right." Cal. Civil Code § 1414. Although the amendments were mostly a restatement of existing law, the Legislature added a requirement that appropriators pro-vide written notice to the public that described the amount of water to be appropriated, the pur-pose of use, and the means of diversion. Id. § 1415. The amendments directed the appropriator to post the notice "in a conspicuous place at the point of intended diversion" and to record the notice in the county in which the diversion took place. Id. The Legislature also required the ap-propriator to commence construction within sixty days of posting the notice and to "prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain." Id. If the appropriator fulfilled these requirements, the Legislature provided that the priority date of the appropriative right would relate back "to the time the notice was posted." Id. § 1418. Failure to comply with these rules “deprives the claimant[] of the right to the use of the water as against a subsequent claimant who complies therewith.” Id. § 1419.

This method of appropriating water lasted until the Water Commission Act of 1913 be-came law on December 19, 1914. The primary purpose of the Act was to consolidate regulatory authority over the appropriation of surface water in a single state agency. All appropriations commenced after December 19, 1914, must be authorized by a permit or license and must com-ply with the procedures set forth in the Water Commission Act. The Act is limited to appropria-tions of water from bodies of surface water and from “subterranean streams flowing through known and definite channels.” Cal. Water Code § 1200. The Legislature thus excluded most groundwater from the new system. The Legislature also specifically exempted from the permit and license system pre-1914 appropriations and riparian rights.

According to section 1201:

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All water flowing in any natural channel, excepting so far as it has been or is be-ing applied to useful and beneficial purposes upon, or in so far as it is or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is hereby declared to be public water of the State and subject to appropriation in accordance with the provisions of this code.

Section 1202 then defines “unappropriated water” as:

(a) All water which has never been appropriated.

(b) All water appropriated prior to December 19, 1914, which has not been in process, from the date of the initial act of appropriation, of being put, with due diligence in proportion to the magnitude of the work necessary properly to utilize it for the purpose of the appropriation, or which has not been put, or which has ceased to be put to some useful or beneficial purpose.

(c) All water appropriated pursuant to the Water Commission Act or this code which has ceased to be put to the useful or beneficial purpose for which it was ap-propriated, or which has been or may be or may have been appropriated and is not or has not been in the process of being put, from the date of the initial act of ap-propriation, to the useful or beneficial purpose for which it was appropriated, with due diligence in proportion to the magnitude of the work necessary properly to utilize it for the purpose of the appropriation.

(d) Water which having been appropriated or used flows back into a stream, lake or other body of water.

15. Note that subsections 1202(b) and (c) of the Water Code define as “unappropriated” any water that an appropriator ceases to apply to beneficial use or fails to appropriate within the pe-riod of due diligence. In section 1203, the Legislature exempted municipalities from these re-quirements. This section provides:

Any water the right to the use of which is held by any municipality which is in ex-cess of the existing municipal needs therefor may be appropriated by any person entitled to the possession of land upon which such excess water may be put to beneficial use; but the right of such person to use such water shall continue only for such period as the water is not needed by the municipality.

16. Under both the common law and the California Water Code, appropriative rights differ from riparian rights in that they may be lost or diminished because of nonuse. Thus, sections 1240 and 1241 of the Water Code provide, respectively:

The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose the right ceases.

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When the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him, for which a right of use has vested, for the pur-pose for which it was appropriated or adjudicated, for a period of five years, such unused water may revert back to the public and shall, if reverted, be regarded as unappropriated public water.

Forfeiture of appropriative rights is not automatic. Rather, a decree of forfeiture must be made by the courts or by the State Water Resources Control Board. See Water Code § 1241 (“Such reversion shall occur upon a finding by the board following notice to the permittee and a public hearing if requested by the permittee.”).

17. The relationship between riparian and appropriative rights historically has been one of the most difficult issues of California water law. As noted above, riparians as a class generally have superior rights to the water in a stream; appropriators follow in order of priority. The exception is where the appropriation was commenced before the riparian land owner received his patent from the state or the federal government. In that case, the appropriator has superior rights vis-à-vis the riparian. See Lux v. Haggin, 69 Cal. 255, 344-49 (1886).

The general seniority of riparian rights applies both to exercised and unexercised rights. Thus, a riparian may expand his or her use of water and preempt existing uses based on appro-priative rights. As we will see when we get to the case of In re Waters of Long Valley Creek Stream System, 25 Cal. 3d 339 (1979), however, when a riparian right has been quantified in a statutory adjudication, see Cal. Water Code §§ 2500 et seq., the unexercised riparian right may be relegated in priority to all existing appropriative rights. Moreover, because all water rights are limited by the doctrine of reasonable and beneficial use set forth in Article X, Section 2 of the California Constitution, there are cases in which appropriative rights take precedence over the unreasonable exercise of riparian rights. See, e.g., Joslin v. Marin Municipal Water District, 67 Cal. 2d 132 (1967); Peabody v. City of Vallejo, 2 Cal. 2d 351 (1935).

18. Town of Antioch v. Williams Irrigation District is one of the most important cases to question the sanctity of prior appropriation. On what basis does the California Supreme Court conclude that Antioch's point of diversion was unreasonable? Are you persuaded by the Court's analysis?

19. As we discussed in Assignment 3, the Water Commission Act of 1913 (now codified at Water Code § 106), declared domestic water supply to be the highest use of water in the state. Should not this legislative judgment have been binding on the Court and dictated a decision in favor of Antioch?

20. The Court's reasoning is exceptionally utilitarian. Indeed, the Court seems to suggest that a judgment in Antioch's favor would jeopardize the future economic development of the state. Assuming this speculation to be true, does it justify the decision to disregard the seniority of An-tioch's appropriation? If removal of Antioch's water right is really so valuable to the state, why should not California be required to condemn the right and pay Antioch just compensation? For that matter, why shouldn’t the upstream junior appropriators be required to compensate Antioch for the interference with its senior appropriative water right?

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21. How would the Court have decided the case if the plaintiff—i.e., the downstream water user—had been a riparian?

22. In the penultimate paragraph of its opinion, the Court responds to Antioch's contention that the upstream junior appropriators are themselves engaging in unreasonable use by growing rice, which requires flood irrigation and standing water. The Court states that the determination whether rice cultivation in an arid region is contrary to the greater interests of the state "is a leg-islative question which the court cannot consider."

Why does the Court have authority to decide that it is contrary to the general economic welfare for Antioch to demand too much of the flow of the Sacramento River to fulfill its senior water rights, but that the Court does not have jurisdiction to consider whether the irrigation of an extremely water intensive crop is unreasonable because it too allegedly requires an inordinate share of the available water?

23. In a pure riparian system it is necessary to apply the doctrine of reasonable use (or some-thing like it) to allocate water among parties who have presumptively equal (i.e., correlative) rights. In a prior appropriation system, where water is rationed in times of shortage on the basis of seniority, is it necessary to recognize the doctrine of reasonable use as a complementary (and often contradictory) means of allocation? Even if the doctrine of reasonable use is not needed, is it nevertheless a desirable component of a prior appropriation system?

24. Finally, California also recognizes two types of water rights that were created under Spanish and Mexican law. In Lux v. Haggin, the California Supreme Court held that Spanish and Mexican land grants carried with them riparian rights. And, in Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237 (1895), the Court declared that pueblos established during Hispanic rule possess “pueblo water rights.”

Pueblo rights are superior to all other water rights and entitle the cities that are successors to the Spanish and Mexican pueblos to enough water to fulfill the city's needs. Moreover, pueblo water rights expand as the size of the city, and the city's demands for water, expand. Pueblo rights also cannot lost because of nonuse. City of San Diego v. Cuyamaca Water Co., 209 Cal. 105 (1930).

Although rancho and pueblo rights are long-standing features of California water law, it is not at all clear that either doctrine was part of Spanish or Mexican law. According to Norris Hundley, an professor of western American history at the University of California at Los Ange-les:

Ordinarily, private grants in the Hispanic legal system carried a right to use water only for domestic purposes and for livestock, but not for irrigation or to operate mills unless the grants specifically permitted such activities. When they did au-thorize irrigation, less than ten percent of the property usually received the desig-nation de riego (irrigable land) or labor (cropland for which irrigation was im-plied). Water rights could subsequently be obtained (or increased or reduced) as a

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result of petition, purchase, or judicial decree. An owner with no irrigation right, who nonetheless turned water onto his lands, could have his uses later affirmed if no one complained for a long period of time, ordinarily ten years under Spanish and Mexican law.

NORRIS HUNDLEY, THE GREAT THIRST: CALIFORNIANS AND WATER, 1790S-1990S, 2D ED., 48 (UNIVERSITY OF CALIFORNIA 2002). Similarly, while Spanish and Mexican law followed a pol-icy of ensuring that the inhabitants of the pueblos had adequate supplies of water, neither embod-ied this policy in the form of a water right. As Professor Hundley explains:

Spanish and Mexican law did, of course, emphasize the preference of community over individual rights, but that preference was neither rigid nor absolute. More importantly, Hispanic law did not vest exclusive rights to a stream in a single community, even the first pueblo established in the area. In effect, the Vernon de-cision transformed the Hispanic preference for community rights into a rigid for-mula favoring a specific community: Los Angeles. [Id. at 137.]

The California Supreme Court has declined to revisit the question of pueblo water rights in light of these historical arguments. We will consider the doctrine of pueblo rights when we study the landmark groundwater case of City of Los Angeles v. City of San Fernando, 14 Cal. 3d 199 (1975), later in the course. Although other cities have pueblo rights, Los Angeles and San Diego are the most significant beneficiaries of the doctrine.

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IRWIN v. PHILLIPS5 Cal. 140 (1855)

HYDEINFELDT, J., delivered the opinion of the Court. MURRAY, C J., concurred.

* * *

The proposition to be settled is whether the owner of a canal in the mineral region of this State, constructed for the purpose of supplying water to miners, has the right to divert the water of a stream from its natural channel, as against the claims of those who, subsequent to the diver-sion, take up lands along the banks of the stream, for the purpose of mining. It must be premised that it is admitted by all sides that the mining claims in controversy, and the lands through which the stream runs and through which the canal passes, are a part of the public domain, to which there is no claim of private proprietorship; and that the miners have the right to dig for gold on the public lands was settled by this Court in the case of Hicks et al. v. Bell et al. 3 Cal. 219.

It is insisted by the appellants that in this case the common law doctrine must be invoked, which prescribes that a water course must be allowed to flow in its natural channel. But upon an examination of the authorities which support that doctrine, it will be found to rest upon the fact of the individual rights of landed proprietors upon the stream, the principle being both at the civil and common law that the owner of lands on the banks of a water course owns to the middle of the stream, and has the right in virtue of his proprietorship to the use of the water in its pure and natural condition. In this case the lands are the property either of the State or of the United States, and it is not necessary to decide to which they belong for the purposes of this case. It is certain that at the common law the diversion of water courses could only be complained of by ri-parian owners, who were deprived of the use, or those claiming directly under them. Can the ap-pellants assert their present claim as tenants at will? To solve this question it must be kept in mind that their tenancy is of their own creation, their tenements of their own selection, and sub-sequent, in point of time, to the diversion of the stream. They had the right to mine where they pleased throughout an extensive region, and they selected the bank of a stream from which the water had been already turned, for the purpose of supplying the mines at another point.

Courts are bound to take notice of the political and social condition of the country which they judicially rule. In this State the larger part of the territory consists of mineral lands, nearly the whole of which are the property of the public. No right or intent of disposition of these lands has been shown either by the United States or the State governments, and with the exception of certain State regulations, very limited in their character, a system has been permitted to grow up by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region has been tacitly assented to by the one government, and heartily encouraged by the expressed legislative policy of the other.

If there are, as must be admitted, many things connected with this system, which are crude and undigested, and subject to fluctuation and dispute, there are still some which a univer-sal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these the most important are the rights of miners to be protected in the possession of their selected localities, and the rights of

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those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines, to supply the neces-sities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in vari-ous acts of the Legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law makers; as for instance, in the Revenue Act "canals and water races" are declared to be property subject to taxation, and this when there was none other in the State than such as were devoted to the use of mining.

Section 2 of Article IX of the same Act, providing for the assessment of the property of companies and associations, among others mentions 11 dam or dams, canal or canals, or other works for mining purposes." This simply goes to prove what is the purpose of the argument, that however much the policy of the State, as indicated by her legislation, has conferred the privilege to work the mines, it has equally conferred the right to divert the streams from their natural chan-nels, and as these two rights stand upon an equal footing, when they conflict they must be de-cided by the fact of priority, upon the maxim of equity, qui prior est in tempore, potior est in-jure.

The miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights, which have an equal equity, on account of an equal recognition from the sovereign power. If it is upon a stream, the waters of which have not been taken from their bed, they can-not be taken to his prejudice; but if they have been already diverted, and for as high and legiti-mate a purpose as the one he seeks to accomplish, he has no right to complain, no right to inter-fere with the prior occupation of his neighbor, and must abide the disadvantages of his own se-lection.

It follows from this opinion that the judgment of the Court below was substantially cor-rect, upon the merits of the case presented by the evidence, and it is therefore affirmed.

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TOWN OF ANTIOCH v. WILLIAMS IRRIGATION DISTRICTSupreme Court of California

188 Cal. 451 (1922)

SHAW, C. J.

This is an appeal by twenty-seven defendants in the above-entitled action from an order of the superior court, made on January 7, 1921, restraining them and each of them, during the pendency of the said action, or until the further order of the court, "from diverting so much water from the Sacramento River and its tributaries, to nonriparian land, that the amount of water flow-ing past the city of Sacramento, in the county of Sacramento, state of California, shall be less than 3,500 cubic feet per second."

The injunction was granted in pursuance of an order upon said defendants to show cause why such injunction should not be ordered. The order to show cause was issued upon the com-plaint in the action and upon an affidavit filed therein on behalf of plaintiff, verified by George L. La Montagne, president of its board of trustees. Antioch is a city of the sixth class. The record is exceedingly voluminous, embracing six large volumes containing 3,150 pages of type-writing. The facts which are necessary to be stated to present the questions that are decisive of the appeal may however be set forth in comparatively short space.

The complaint states at some length the facts that the boundaries of the city of Antioch extend to the water's edge of the San Joaquin River and that it claims rights therein both by virtue of its riparian situation and by virtue of a diversion and appropriation of the waters of that river. Upon the hearing, however, it was conceded that the rights of the city of Antioch in said river, whatever they may be, are founded solely on its diversion and appropriation of the waters thereof to the public use of supplying itself and its inhabitants with water for domestic uses and other purposes.

The city of Antioch, continuously and under a claim of right, for more than five years be-fore the action was begun, has been diverting from said river, at a point immediately above the city limits, and applying to said public use, a quantity of water equal to a continuous flow of a little less than one cubic foot per second. To be suitable for the main purpose to which this water is devoted, that of domestic uses, it is, of course, necessary that the water be fit for use as a bev-erage and for cooking and washing. It is not claimed that there is not always ample water in the river to supply the above-mentioned amount for the use of the plaintiff. The complaint made is that the diversions of water from the Sacramento River at points from 10 to 200 miles above the city of Sacramento by the appellants have caused the water of the San Joaquin River, at the city's place of diversion therefrom, to be so polluted with the salt waters of the ocean, forced up the San Francisco Bay and into the lower part of the San Joaquin River by the impulses of the tides that it is unfit for domestic uses, and that thereby the rights of the city, under, its diversion and appropriation, are practically destroyed.

It is necessary here to state some additional facts to explain how this pollution comes about and why diversions from the Sacramento River may or do affect the volume and quality of the water flowing down the San Joaquin River by the city of Antioch into Suisun Bay, which is

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the common receptacle of both rivers. The Sacramento River flows from the northerly part of the state southerly into Suisun Bay at Collinsville. The San Joaquin River flows from the southerly part of the state and also enters said bay at Collinsville, immediately adjoining and south of the mouth of the Sacramento. Antioch is situated on the San Joaquin River, about four miles above its entrance to said bay. Suisun Bay is really the upper end of the San Francisco Bay. For many miles above the entrance of the two rivers into said bay, the land between them is flat and is threaded with sloughs in which water either stands or flows. From the Sacramento River at two points, one about eight and the other about twenty-three miles above its mouth, sloughs diverge, into which parts of its waters escape and flow through the said sloughs and into the San Joaquin River at points several miles above the place of the diversion by the city of Anti-och.

When the current of the water of the two rivers is sufficiently strong the influx of the in-coming tides from the ocean is held back so that in times of ordinary low water in the rivers, the salt water does not reach and mingle with the fresh water of the San Joaquin River at a point above its entrance into Suisun Bay. As the volume of the waters of the two rivers decrease[s], the point in the San Joaquin River where the salt water begins to mingle with the fresh water as-cends the stream. The claim of the city is that hitherto, until the excessive diversions of the de-fendants, the point at which this mingling of the salt and fresh water takes place has always been far below its place of intake from the river, but that owing to the great diversion of water from the Sacramento River by the appellants during the years 1919 and 1920 the water flowing in the Sacramento River in the extreme dry season of each year was diminished so that it did not ex-ceed at the lowest stages 420 cubic feet per second, and less of its water passed through the said sloughs into the San Joaquin River, with the result that the tides impelled salt water further up said river and the mingling of the salt and fresh water took place at a point above the intake of the city's municipal water system, in consequence whereof the water furnished by it to its inhabi-tants was made salty and unfit for any use, and that in order to prevent the salt water from as-cending to the said place of intake it was necessary that there be kept flowing in the Sacramento River during the dry season not less than 3,500 cubic feet of water per second at the city of Sacramento.

* * *

The law in regard to the right of an appropriator or diverter of the waters of a stream, as against subsequent appropriators above, to have the water of the stream at his point of diversion preserved in its natural state of purity, so far as may be necessary for the purposes to which he is devoting it at the time such subsequent appropriations begin, is well established.

* * *

If this were an ordinary case of pollution above, whereby the water flowing down to the lower and prior appropriator was defiled or contaminated, the rule thus fixed by our decisions, which in effect follow the common law on the subject, would govern the case and the plaintiff would clearly be entitled to the injunction granted, or to some restraint that would have the effect of preserving the water in its original purity.

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But, in its origin and cause, the case at bar is wholly unlike the cases by which the rule just stated was established. Nothing has been placed in the stream above by the defendants that in the least affects the purity of the water flowing therein. All that they have done is to deplete the stream by taking out water for irrigation, and they have done this under provisions of the Civil Code which give them the right to take it from the stream for beneficial uses, subject to the lawful rights of prior appropriators below and to the rights of riparian proprietors. The pollution of the water complained of is caused by the fact that the depleted volume of the stream does not hold back the rising tide of salt water from the bay below as effectually as the natural volume might do. The case is unprecedented in character. Neither the effects of the application of the rule aforesaid to such a case, nor the conditions here existing, have ever been considered in any decision on the subject. The question is open for the adoption of such rule as we may deem just.

The place where the river water meets and overcomes the inflowing tide is not fixed. It changes with the rise and fall of the rivers and tides. The tides vary in height. The rivers vary much more in their volume and height. Hence, it follows that where there is fresh water one day there may be salt water, a week, or even a day, thereafter. At a point near to that meeting place, the diversions of the riparian owners, of which no complaint is here made, may change the char-acter of the water at any time. Dry seasons advance the point of meeting further up the stream, and wet seasons drive it further into the bay. Any person who appropriates water from one of these rivers at a point near to that meeting of the waters must take notice of these conditions, and his rights will necessarily be restricted thereby. He acts at his peril with regard to them. He must also take notice of the policy of our law, which undoubtedly favors, in every possible man-ner, the use of the waters of the streams for the purpose of irrigating the lands of the state to ren-der them fertile and productive, and discourages and forbids every kind of unnecessary waste thereof.

The record in this case shows that in the extreme dry season in the year 1920 the flow of the river at the city of Sacramento was reduced to 420 second feet, largely by the diversions of the defendants. The claim of the city of Antioch is that for its protection the flow at that point must be maintained at 3,500 second feet. In effect, therefore, its claim is that 3,080 second feet of water otherwise available for irrigation above must at all times be kept flowing down the river into the bay, without any other beneficial use whatever, in order that the city of Antioch may be able to take less than one second-foot of fresh water therefrom at its pumping plant near the mouth of one of the rivers. Not only this, but, if its claim is allowed, every other prior user of water who takes it out near to the meeting place of the waters must be allowed the same right. And, as the close proximity of the place of diversion to the meeting of the waters would not di-vest or affect the right as against subsequent appropriators above, one whose pump was a hun-dred yards above the highest known rise of the salt water would have the right to keep practically the entire river flowing down to his pump so as to keep the salt water therefrom.

Thus a single appropriator of water for the domestic use of one family, taking probably less than a fiftieth part of a second foot of fresh water for actual use, would, in practical results, appropriate or control 3,080 second feet of water of the river to supply his pipe with that infini-tesimal quantity, and in that way he would keep more than 300,000 acres of fertile land in the valley above dry and unproductive. By a valid appropriation of one miner's inch he would, in ef-fect, appropriate all the water flowing in both of these large rivers. It would be hard to conceive

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of a greater waste for so small a benefit. It may without exaggeration be said that the full use of the waters of the rivers and mountain streams for irrigation, power, and like beneficial purposes, is absolutely necessary to the continued growth and prosperity of the state. The interior valleys are rapidly growing in population, and their capacity for production is being developed, chiefly, by irrigation of the land. The necessity for the most economical and careful use of the limited supply of water obtainable in this arid climate has often been adverted to in the decisions of this court from the beginning of its settlement by white men, and as it grows and increases in popula-tion and production the necessity increases correspondingly.

Nevertheless, the plaintiff contends that under the principles of the common law bearing upon the subject of water rights by appropriation, as established in this state, the city of Antioch, as a prior appropriator from the stream, has the right to enjoin a pollution of the water thereof, ar-tificially produced after its use thereof began, from any causes whatever, even under the circum-stances above detailed, except where it is caused by the exercise of riparian rights.

In this state the climate, the original ownership of the land, the policy of the governments of the United States and the state, the original owners, regarding the use and occupancy thereof for mining purposes by persons not in privity with them, and the necessity of water for placer mining and irrigation, are all so different from the conditions existing in Great Britain, where the common law had its origin, that the court from the first has had some difficulty in applying it here without producing the injustice or wrong which it is the chief purpose of the common law to prevent or redress. It has frequently been necessary to invoke the maxim of jurisprudence that "when the reason of a rule ceases, so should the rule itself," and this maxim has been incorpo-rated into the Civil Code. (Section 3510.) It is as much a part of the common law as are the rules concerning the right of appropriation of water. . . . The law of the rights of appropriators of water in this state, . . . is, therefore, the creation of the courts in the endeavor to adapt and modify the rules of the common law so as to suit the peculiar conditions existing here. The question re-mains whether, in view of the unprecedented conditions of the case at bar, the rules, applying to the ordinary pollution of water by the deposit of deleterious matter in the stream above the in-jured party, are to be applied here.

Such questions do not often arise and the doctrine above adverted to should, of course, al-ways be applied with caution. Similar unprecedented conditions were presented in Katz v. Walkinshaw, 141 Cal. 116, [74 P. 766 (1903)], and the numerous cases following it. It was there said that: "Whenever it is found that, owing to the physical features and character of this state, and the peculiarities of its climate, soil, and productions, the application of a given common law rule by our courts tends constantly to cause injustice and wrong, rather than the administration of justice and right, then the fundamental principles of right and justice on which the law is founded, and which its administration is intended to promote, require that a different rule should be adopted."

That case involved conditions prevalent over a large portion of the state not interested in the property rights there determined. This case presents perhaps the only instance in the state where the question at issue has arisen or can arise. The rule we may adopt here can scarcely be a precedent for any case except one arising upon these two rivers concerning a similar claim of some prior appropriator near the outlets thereof.

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In addition to the facts and conditions already mentioned there are others to be considered which made the practical application of the rule contended for by the plaintiff still more difficult and uncertain. The year 1920 was one of the driest that has occurred in the history of the state. In an average season the plaintiff would have suffered no injury from the diversions complained of. The Sacramento and San Joaquin Rivers are by far the largest in the state. They each traverse wide valleys in which are many hundreds of thousands of acres of land suitable for irrigation and comparatively barren without it. They are each fed by large tributaries heading high up in the mountains. In these tributaries and in the main streams, many appropriations of water for irriga-tion have already been made and in the tributaries of the Sacramento River there are possibilities of many more, particularly if storage reservoirs are resorted to. It is certain that such appropria-tions and uses of the waters of those streams will be made or attempted in the future.

If this rule should be adopted, it is obvious that no one could safely attempt such enter-prises, or invest money therein, without previously ascertaining whether there are any appropria-tors of fresh water from the river near to its outlet into the bay, a hundred or more miles below, who might be affected injuriously thereby, and thereupon coming to terms with all such appro-priators concerning the resulting damage to be claimed and paid. There would be great difficulty in ascertaining the facts, and still greater in coming to an agreement. A private appropriator could not condemn the right and must agree or act at his peril. A public enterprise must needs agree or enter into a costly litigation to condemn the right. The damage from any particular di-version or storage out of so many could not be ascertained with any degree of even approximate accuracy. The result, in actual practice, would be either that the appropriators near the outlet would have to abandon all claims of damage, or the proposed diversion or storage enterprises must be abandoned.

Antioch carries its water from its pump to its reservoir by a six-inch pipe. By moving its pump a few miles up the river it could obtain water free from saline solution. It is not altogether improbable that, if it had devoted the same amount of energy and expenditure to a change of its place of diversion as it has to the present litigation, it would have had the water uncontaminated by salt with less delay than had already occurred and at no more expense. And from the large number of attorneys who have appeared for the numerous defendants and the time they have ex-pended in the case up to date, it is also possible that if they had acted in concert to make the change of place for the plaintiff some expense might have been saved and the litigation avoided entirely. It is evident from all these considerations that to allow an appropriator of fresh water near the outlet of these two rivers to stop diversions above so as to maintain sufficient volume in the stream to hold the tide water below his place of diversion and secure him fresh water from the stream at that point, under the circumstances existing in this state, would be extremely unrea-sonable and unjust to the inhabitants of the valleys above and highly detrimental to the public in-terests besides.

Our conclusion is that an appropriator of fresh water from one of these streams at a point near its outlet to the sea does not, by such appropriation, acquire the right to insist that subse-quent appropriators above shall leave enough water flowing in the stream to hold the salt water of the incoming tides below his point of diversion. Further than this we need not go.

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* * *

In the argument there is considerable discussion in regard to the supposed effect of the doctrine we have laid down upon the lands along and near the sloughs and river channels of the delta lands above the mouths of the two rivers. There were no allegations in the complaint con-cerning these lands. No owner of such land, by intervention or otherwise, sought relief at the hand of the court below, and that court, so far as appears, did not consider the effect on such land. It did not find any facts relating thereto, the pleadings alleged no facts bearing thereon, and none are presented in the record for our consideration. There is, therefore, nothing for this court to say on the subject. We know of nothing relating to such lands that would require a conclusion different from that which we have stated.

A good deal is said in the briefs by the respondent to the effect that the water diverted by the defendants is all used for the cultivation of rice and that rice-growing requires such an exces-sive quantity of water, as compared with any other crop, that it practically amounts to a waste, and that its cultivation ought not to be tolerated in California, where water for other crops and uses is so indispensable and so scarce. Rice is not grown by irrigation, in the ordinary sense of that word, but by flooding. The ground must be kept covered with water so that, for weeks at a time, the rice-fields, in this case, embracing over 300,000 acres, it is claimed, present the appear-ance of a large lake. In some instances and in some soils the growing of rice, so it is said, re-quires nine times as much water as ordinary crops. It may be that under these circumstances rice culture in this state should not be encouraged, or that, in the exercise of the police power, the use of the waters of the state in that business might be lawfully forbidden. But that is a legislative question which the court cannot consider. The making of such a rule is beyond our power. The rule here declared is and must be general in its application, and it protects all other beneficial uses of water on land in the Sacramento and San Joaquin valleys as well as that of the rice-grow-ers.

The order appealed from is reversed.

Lawlor, J. Wilbur, J. Waste, J. Shurtleff, J. Sloane, J. Lennon, J., concurred.

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