CALIFORNIA WATER RESOURCESASSIGNMENT 6

Elements of the Modern Law of Prior Appropriationand a First Look at the Doctrine of Reasonable Use

“I felt something different in the air in North Platte, I didn’t know what it was. In five minutes I did. We got back on the truck and roared off. It got dark quickly. We all had a shot, and suddenly I looked, and the verdant farmfields of the Platte began to disap-pear and in their stead, so far you couldn’t see to the end, ap-peared long flat wastelands of sand and sagebrush. I was as-tounded.

“What the hell is this?” I cried out to Slim.

“This is the beginning of the rangelands, boy. Hand me another drink.”

Jack Kerouac, On the Road (1957)

Reading:

State ex rel. Carey v. Cochran

Town of Antioch v. Williams Irrigation District

Notes and Questions:

1. 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). Appropria-tive rights are created by use, rather than by ownership of land as in the ri-parian system. There are no place of use restrictions on the exercise of ap-propriative rights; thus, water that is appropriated from one river may be used on lands and in watersheds far removed from the watershed-of-origin.

2. 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 issued 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 "licensed" rights.

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Originally, appropriators established their water rights simply by divert-ing 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 Legislature 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 restate-ment of existing law, the Legislature added a requirement that appropriators provide written notice to the public that described the amount of water to be appropriated, the purpose of use, and the means of diversion. Id. § 1415. The amendments directed the appropriator to post the notice "in a conspicu-ous 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 appropriator to commence construction within sixty days of the posting of the notice and to "prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain." Id. If the ap-propriator fulfilled these requirements, the Legislature provided that the pri-ority 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 became 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 Decem-ber 19, 1914, must be authorized by a permit or license and must comply with the procedures set forth in the Water Commission Act. The Act is lim-ited to appropriations of water from bodies of surface water and from “sub-terranean 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 li-cense system pre-1914 appropriations and riparian rights.

According to section 1201:

All water flowing in any natural channel, excepting so far as it has been or is being applied to useful and beneficial purposes

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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 appro-priation, of being put, with due diligence in proportion to the magnitude of the work necessary properly to utilize it for the pur-pose 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 benefi-cial purpose for which it was appropriated, 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 appropriation, to the useful or beneficial purpose for which it was appropriated, with due diligence in proportion to the magni-tude 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.

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

Any water the right to the use of which is held by any municipal-ity which is in excess 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.

4. Under both the common law and the California Water Code, appropria-tive rights differ from riparian rights in that they may be lost or diminished

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because of nonuse. Thus, sections 1240 and 1241 of the Water Code pro-vide, 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.

When the person entitled to the use of water fails to use benefi-cially all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropri-ated 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 Con-trol Board. See Water Code § 1241 (“Such reversion shall occur upon a find-ing by the board following notice to the permittee and a public hearing if re-quested by the permittee.”).

5. 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 appropria-tor 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 appropriative 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 statu-tory adjudication, see Cal. Water Code §§ 2500 et seq., the unexercised ripar-ian 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 Constitu-tion, 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).

6. 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

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rights. And, in Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237 (1895), the Court declared that pueblos established during Hispanic rule pos-sess “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 Cali-fornia 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 Ameri-can history at the University of California at Los Angeles,

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 specifi-cally permitted such activities. When they did authorize irriga-tion, less than ten percent of the property usually received the designation de riego (irrigable land) or labor (cropland for which irrigation was implied). Water rights could subsequently be ob-tained (or increased or reduced) as a result of petition, purchase, or judicial decree. An owner with no irrigation right, who none-theless 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 policy of ensuring that the inhabitants of the pueblos had ade-quate supplies of water, neither embodied this policy in the form of a water right. As Professor Hundley explains:

Spanish and Mexican law did, of course, emphasize the prefer-ence 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 Ver-non decision transformed the Hispanic preference for community rights into a rigid formula favoring a specific community: Los An-geles. [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

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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.

7. State ex rel. Carey v. Cochran and Town of Antioch v. Williams Irriga-tion District raise the fundamental question of the role of priority of appropri-ation in a prior appropriation system. Can the opposite results be explained by factual differences in the two cases? Or, are the different results based on the California Supreme Court's and the Nebraska Supreme Court's oppos-ing conceptions of the interplay between priority of appropriation and rea-sonable use?

8. Among the competing parties in Carey, the plaintiffs held the most se-nior water rights along the Platte River. Shouldn't they automatically win the case?

9. What other factors should the Court consider in evaluating the compet-ing claims?

10. The Court states that it requires a flow of 700 second feet (usually this is referred to as cubic feet per second or "cfs") measured at the City of North Platte to provide the plaintiffs’ full entitlement of 162 cfs at the headgate of the Kearney Canal.

a. Where are the plaintiffs' water rights measured—at the place of diversion; at the place of use; or at North Platte?

b. Should the 538 cfs carriage loss be included in the plaintiffs' wa-ter right? If so, are they making a beneficial use of that water? What is that use?

c. Why did the Nebraska Supreme Court not consider this carriage loss of 538 cfs—which is 77 percent of the water as it flows from North Platte to the Kearney Canal—to be waste or unreasonable use?

d. What is the difference between "beneficial use" and "reasonable use"?

e. What happened to the 538 cfs?

11. The Court states that there are approximately 500 groundwater users that pump water from the aquifer that is hydrologically connected to the Platte River. These users pump as much as 40,000 acre feet annu-ally ("afa") from the aquifer. These groundwater withdrawals in turn

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affect the level of the groundwater table and hence the flow of surface water in the river.

a. Why did the Court not consider the effects of this groundwater use on the carriage losses that occur in the Platte River?

b. If the groundwater users began pumping after the junior surface water appropriators began their diversions, why should the law of prior appropriation announced by the Court permit the junior groundwater users to continue their withdrawals of groundwater while senior surface water users must curtail their diversions?

12. Please note the Court's deference to the Nebraska State Engineer's de-termination whether a "usable quantity" of water will reach the Kearney Canal under conditions of variable river flow and great uncertainty. The Court declares that the State Engineer's decision is final unless one of the parties can prove that it is arbitrary or unreasonable. In view of this holding, who won the case?

13. The central issue in both Carey and Antioch was whether the place-ment of a senior appropriator's point of diversion at a downriver location is unreasonable in light of competing demands upstream. In Carey, the conflict between upstream and downstream use was caused primarily by the subter-ranean loss of water from the river in the vicinity of Gothenberg. In Antioch, the conflict was caused principally by the intrusion of salt water from San Francisco Bay up the Carquinez Strait, which mixes with and degrades the freshwater flowing into the Strait from the Sacramento and San Joaquin Rivers. In both cases, the unreasonable use claim was that it required an in-ordinate (that is to say unreasonable) flow to provide the downstream users with the water to which they were entitled under their senior water rights.

For purposes of administering the prior appropriation system, can a hy-drologic or legal distinction be made between these two situations? In other words, should the courts protect senior appropriators who are located below a stretch of river along which significant carriage losses occur, but not pro-tect senior appropriators who are located too close to a saltwater or brackish estuary where tidal action and changes in river flows produce harmful salt-water intrusion?

14. On what basis does the California Supreme Court conclude that Anti-och's point of diversion was unreasonable? Are you persuaded by the Court's analysis?15. 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?

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16. The Court's reasoning is exceptionally utilitarian. Indeed, the Court seems to suggest that a judgment in Antioch's favor would jeopardize the fu-ture economic development of the state. Assuming this speculation to be true, does it justify the decision to disregard the seniority of Antioch's appro-priation? 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?

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

18. In the penultimate paragraph of its opinion, the Court responds to Anti-och's contention that the upstream junior appropriators are themselves en-gaging 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 legislative 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 does not have jurisdic-tion 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?

19. In a pure riparian system it is necessary to apply the doctrine of rea-sonable use (or something 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 rea-sonable use is not needed, is it nevertheless a desirable component of a prior appropriation system?

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STATE ex rel. CARY v. COCHRANSupreme Court of Nebraska

138 Neb. 163, 292 N.W. 239 (1940)

CARTER, J.

This is an action of mandamus brought by a number of irrigators under the Kearney canal, on behalf of themselves and others similarly situated, and by the Central Power Company, which, with the exception of one small user of water, is the owner of the oldest water appropriation on the Platte river and its tributaries. The respondents are the governor, the state engineer, and the chief of the bureau of irrigation and his subordinates. The petition prays for the issuance of a writ of mandamus compelling the proper adminis-tration and enforcement of the irrigation laws of the state for the purpose of protecting the irrigation and power rights of the relators from alleged unlaw-ful diversions of water above relators' canal by junior appropriators. The trial court denied the writ and dismissed the petition of the relators. Relators thereupon perfected an appeal to this court.

It is not disputed that the waters of the Platte river and its tributaries are subject to appropriation for irrigation and power purposes upon the prin-ciple that priority of time bestows priority of right, and that pursuant to such principle the Central Power Company, through its predecessors in interest, was adjudicated and given a priority upon the Platte river, as of September 10, 1882, of 140 cubic feet per second of flow of water for power purposes, and a further appropriation, as of February 12, 1920, of 485 cubic feet per second for the same purposes. It is also admitted by the pleadings that 22 second-feet of water have been adjudicated to certain lands in Buffalo county for irrigation purposes with a priority dating of September 10, 1882, and which, for the purposes of this suit, will be treated as the property of cer-tain of the relators claiming to be the owners thereof in this litigation. The foregoing appropriations of water, bearing the priority dating of September 10, 1882, are prior in time to all appropriations on the Platte river and its tributaries in Nebraska except an appropriation to the Nelson Radcliffe canal in Morrill county with a priority dating of June 1, 1882, for 2.77 cubic feet of water per second of time.

The Central Power Company, in reliance upon its adjudicated water rights, reconstructed and rebuilt its power plant and diversion dam, and in-stalled new machinery, appliances and equipment at a cost of $225,000 or more, to make it of sufficient capacity to beneficially use water to which it was entitled under its appropriations adjudicated and allowed as of Septem-ber 10, 1882, and February 12, 1920. The remaining relators are owners of land in Buffalo county, which is irrigable and irrigated from the waters car-ried in the Central Power Company canal during the irrigation season, said water being the 22 second-feet adjudicated to certain lands in Buffalo county

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under the priority dating of September 10, 1882, and appurtenant to said lands subject only to the payment of a carrying charge to the Central Power Company. That relators have constructed laterals leading to and upon their respective lands, and made beneficial use of all of the 22 cubic feet per sec-ond of flow under their appropriation whenever it was available in the river, is alleged in the petition. For the purposes of this suit only, this allegation will be considered as true. The respondents, as officers, agents and employ-ees of the bureau of irrigation, are charged by law with the duty of the ad-ministration and enforcement of the irrigation laws of the state and the dis-tribution of the waters of the Platte river and its tributaries within the state in accordance with adjudicated priorities. It is the contention of relators that respondents, in administering and enforcing the irrigation laws of the state and in the distribution of water for irrigation, have continuously permitted and allowed junior appropriators, situated above the headgate of the Central Power Company, to take and use water for irrigation, storage, and other pur-poses, without regard to priority and to the prejudice and damage of the re-lators.

* * *

The North Platte river is a nonnavigable stream which has its source in the mountains of Colorado and flows across a part of Wyoming and Nebraska to a point approximately 200 miles from the Wyoming-Nebraska line, where it joined the South Platte river to form the Platte river. The present case in-volves the administration of irrigation and power rights on the North Platte and Platte rivers from the Wyoming-Nebraska line to the headgate of the Kearney canal located 13 miles west of Kearney, Nebraska. The water dis-charged into the Platte river from the South Platte river also has its place in the problem before us, but it does not appear to have been treated as of ma-jor importance by the parties in the present suit. The North Platte and Platte rivers will therefore be treated as the primary subject of the litigation. For the purposes of this suit, the upper end of the river is at the Wyoming-Ne-braska line and the lower end at the headgate of the Kearney canal, it being the last point of diversion for irrigation and power purposes on the river.

* * *

The first irrigation laws in this state were enacted in 1889. In 1895 a comprehensive irrigation code was enacted which, as amended, appears as chapter 46 of the Compiled Statutes of Nebraska for 1929. The various statutory provisions thereof, providing for the distribution of water among different appropriators according to their respective priorities by administra-tive officers of the state, were undoubtedly enacted in the furtherance of a wise public policy to afford an economical and speedy remedy for those whose rights are wrongfully disregarded by others, as well as to prevent un-necessary waste and useless diminution of the waters of streams, and to

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avoid unseemly controversies that may occur where many persons are enti-tled to share in a limited supply of public water for irrigation and power pur-poses. It is the duty of the state under our irrigation code to administer the waters of streams and rivers to prevent waste, to protect prior appropriators against subsequent appropriators, and to enforce all adjudicated water rights in accordance with their terms. * * *

The flow of the river even in the summer months is affected by the amount of snow falling in the mountains of Colorado within its drainage basin. The river passes through parts of Colorado and Wyoming, both of which states require irrigation water in excess of the available supply. Stor-age and control dams under the control of the federal Government also exist along the river west of the point where the river enters Nebraska. Water rights, both senior and junior to existing rights and priorities in Nebraska, coupled with the uncertainty of their accurate administration, add to the in-definiteness of the amount of water that passes at any given time across the state line and under the control of the administrative officers of this state.

Losses from evaporation and transpiration are heavy, due to the wide and shallow character of the river. Changes of temperature and varying types of wind add to the uncertainty of the losses resulting from these changing conditions. Losses from percolation vary along the various sectors of the river. The evidence shows that the river valley from the Wyoming-Ne-braska line to North Platte or thereabouts is underlaid with impervious forma-tions which do not permit losses of subterranean waters into other water-sheds. At some unknown point between North Platte and Gothenburg, the river cuts through the impervious formations and runs into the sheets of sand and gravel with which the territory is underlaid. Losses begin to occur at this point due to the percolation of river water through this sand and gravel formation, in a southeasterly direction into the basin of the Republi-can river. It was estimated by Professor A. L. Lugn, an expert on geology, stratigraphy and ground-water hydrology, that the loss to the Republican river basin would be from 50,000 to 100,000 acre-feet of water each year. It is true that a large part of this loss occurs below the headgate of relators' canal. This estimate is recited for the purpose of giving some idea of the na-ture and degree of the loss, without any hope of accurately measuring such losses occurring above the headgate of the Kearney canal.

Experts with experience on the river estimate that the loss in deliver-ing water from North Platte to the headgate of the Kearney canal with a wet river bed amounts to three times the amount of delivery, and with a dry river bed that it is almost impossible to get water through without a flood or a large sustained flow. In other words, it requires approximately 700 second-feet of water at North Platte to deliver 162 second-feet at the headgate of the Kearney canal when the river bed is wet. The underlying sand and gravel beds thicken as the river moves east. With the bed of the river on the

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surface of these sand and gravel deposits, it requires a huge amount of wa-ter to recharge the river channel and surrounding water table after the river bed once becomes dry. Until the water table is built up to the surface of the river bed, the river channel will not support a continuous flow, It is also shown that the water table has been affected materially by pump irrigation. It was estimated that there are 500 irrigation pumps in Dawson county alone, which pump as much as 40,000 acre-feet of water in a single season.

The evidence bears out the statement that the Platte river east of Gothenburg is a very inefficient carrier of water. In addition to the subter-ranean losses noted, the river spreads out, causing a broad surface of water and channel bed to be subjected to large evaporation losses. It is further es-tablished by early settlers along the river that it was not unusual for the river to go dry in July and August before irrigation was generally practiced along the river. That the river is generally considered a gaining stream, and can be so established by an examination of the statistical records of the mean flow for the calendar year, is borne out by the record. But it is just as clearly shown that the river is ordinarily a losing stream during the months of July and August, when the mean flow for that period is considered.

These conditions and activities establish the cause of the huge losses of water between Gothenburg and the Kearney canal. They are important only as factors that must be considered by the officers of the state in dis-tributing an insufficient supply of water to appropriators in the proper order of priority.

Appropriations of water are made throughout the length of the river. The priority dates of these appropriations have no relation whatever to their location on the stream. Hence, very early appropriations may be found at the upper and lower ends of the stream, while very late appropriations are likewise found at both ends. In times of water shortage, the later appropria-tors are the first to be deprived of water. The closing of canals in accordance with the inverse order of their priority dates necessarily requires certain canals to close their headgates all along the stream at the same time.

Water moves down the stream at approximately 25 miles per day with the result that it requires approximately ten days to deliver water from the state line to the Kearney headgate under normal conditions. The resulting lag therefore becomes an important factor to be considered. During the lag period, conditions over which the administrator of the river has no control may change or disrupt all calculations. Excessive heat, continued drought, and unusual winds may greatly reduce estimated quantities of river-flow, or, on the other hand, low temperatures, rains and floods in the lower river basin may relieve immediate demands.

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These elements of uncertainty must be considered in protecting the rights of all on the stream. The position of relators at the lower end of the stream is in itself a recognized condition, and while they have the second oldest priority on the river, it is inescapable that their location subjects them to unfavorable conditions which are practically impossible to eliminate.

It must also be borne in mind that the amount of flow the river at any given time during the irrigation season is nothing more than an estimate based on spot measurements. Accurate figures are not obtainable until sev-eral weeks after the immediate problem has been determined. The best available basis for the determination of the facts therefore is often very un-certain. The effect of the use of the river as a carrier of storage water also enters into the calculations. The best estimates of the administrator are of-ten affected by unlawful diversions by junior appropriators, injunctions and restraining orders issued by the courts, errors of judgment by the administra-tor and his subordinates, dilatory compliance with closing orders, and inaccu-rate reports of rains, floods and weather conditions generally.

All of the factors hereinbefore mentioned contribute to the uncertainty of an efficient and accurate distribution of water in accordance with adjudi-cated appropriations in the order of their priority.

The use of water for irrigation in this state is a natural want. The inad-equacy of supply to meet the demands of the public requires strict adminis-tration to prevent waste. It is therefore the policy of the law that junior ap-propriators may use available water within the limits of their own appropria-tions so long as the rights of senior appropriators are not injured or dam-aged. And so, in the instant case, junior appropriators may lawfully apply water to their lands within the limits of their adjudicated appropriations until the Kearney canal fails to receive its full appropriation of 162 second-feet. Until the senior appropriator is injured, there is the ever-present possibility of changed weather conditions, precipitation, or other sources of water supply which might alleviate the situation and supply the needs of the Kearney canal. To pursue any other rule would greatly add to the loss by waste of the public waters of this state. We conclude therefore that the use of water by a junior appropriator does not become adverse to or injure a senior appropria-tor until it results in a deprivation of his allotted amount, or some part thereof. This rule is supported, we think, by our decisions as well as the de-cisions of other states.

The real question to be decided, however, is the determination of the duty imposed upon the officers of the state in administering the waters of the stream when the available supply of water at the headgate of the Kear-ney canal is reduced to an amount less than the 162 second-feet to which the relators are entitled.

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The rights of relators to the use of this water as against all appropria-tors subsequent to September 10, 1882, cannot be questioned. It is the duty of the administrative officers of the state to recognize this right and to give force to relators' priority. This requires that junior appropriators be re-strained from taking water from the stream so long as such water can be de-livered in usable quantities at the headgate of the Kearney canal.

If it appears that all the available water in the stream would be lost be-fore its arrival at the headgate of the Kearney canal, it would, of course, be an unjustified waste of water to attempt delivery. Whether a definite quan-tity of water passing a given point on the stream would, if not diverted or in-terrupted in its course, reach the headgate of the Kearney canal in a usable quantity creates a very complicated question of fact. It therefore is the duty of the administrative officers of the state to determine from all available means, including the factors hereinbefore discussed, whether or not a usable quantity of water can be delivered at the headgate of the Kearney canal. It necessarily follows that this finding of fact must be determined in the first in-stance by the officers charged with the administration of the stream. The finding of fact thus made is final unless it appears that it was unreasonable or arbitrarily made.

The determination of the facts is an administrative function, and an or-der or course of conduct based thereon raises only the question whether the administrator was supported in his finding by evidence indicating his action was not unreasonable or arbitrary. The rule is that where the action of the administrative officer of the state is not unreasonable or arbitrary, and does not exceed the duties and powers imposed, this court will not interfere with the findings of fact so made because to that extent they involve an adminis-trative, as distinguished from a judicial, function. The necessity of prompt, efficient and fair administration of the waters of a stream in a territory where irrigation is practiced has been demonstrated on many occasions. Such ad-ministration requires the exercise of judgment, experience, training, and sta-tistical knowledge. The factors to be considered are numerous and intricate. Unless such findings be promptly made, it is ordinarily not necessary that they be made at all. The very necessities of the case require that the find-ings of the administrator be final unless shown to be unreasonable and arbi-trary.

After determination that a given quantity of water passing a certain point on the river would not, even if uninterrupted, reach the headgate of the Kearney canal in usable quantities, the administrative officers of the state may lawfully permit junior appropriators to divert it for irrigation purposes. This results ofttimes in having junior appropriators receiving a head of water at a time when an appropriator farther downstream is getting none, though he is prior in time. Such situations are not therefore conclusive evidence of unlawful diversions.

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Amici curiæ urge that the doctrine of reasonable use is in force in this state and that it should be applied to the case at bar. We recognize the prin-ciple that the public have an interest in the public waters of the state and it is the use thereof only that may be appropriated. Even though all appropria-tion may be vested, it may be subjected to regulation and control by the state by virtue of its police power. It may likewise be circumscribed to the extent that a limited diversion for a specified purpose will not permit of an undue interference with the rights of other appropriators on the stream.

But we cannot agree that the doctrine of reasonable use can be ap-plied in a case where delivery of usable quantity of water can be made, al-though the losses suffered in so doing are great. To permit the officers of the state the right to say whether prospective losses would or would not jus-tify the delivery of usable quantities of water would clothe such officers with a discretion incompatible with the vested interests of the relators, and de-stroy the very purpose of the doctrine of appropriation existent in this state. When upstream appropriators applied for and received adjudicated priorities, they did so with the knowledge that there was an earlier appropriator, at the lower end of the stream whose rights had to be recognized. When the rela-tors applied for and received their adjudications, they are likewise presumed to have known that other appropriators would obtain inferior rights above them that would have to be recognized. Each is required to respect the vested rights of the others, even though some hardships may be thereby im-posed.

We therefore hold that the doctrine of reasonable use does not extend so far as to authorize the administrator of the waters of the stream to refrain from delivering a usable quantity of water to a senior appropriator because it might appear to him that excessive losses would result. The duty of the ad-ministrator, in administering the waters of the stream by virtue of the police power of the state, is to enforce existing priorities, not to determine, change or amend them. But in regulating the distribution of water it may become in-cidentally necessary for him to ascertain for that purpose only whether a prior appropriator is injured by a diversion above him. This finding of fact must be made, not to change existing priorities, but in order to determine whether or not a distribution of water may be made to a junior appropriator in accordance with existing priorities.

* * * The administration of the waters of the stream must be in accor-dance with the law announced in this opinion. The administrator testifies to his willingness to so administer the stream and, in fact, contends that he has so administered it. We doubt not that he will endeavor to so administer it in the future. That the application for a writ of mandamus in case of default of duty on the part of respondents is the correct remedy cannot be questioned. The pleadings and evidence, however, fail to disclose a default of any minis-

15

terial duty on the part of respondents at the time the writ was applied for. In addition thereto, respondents indicate a willingness to administer the waters of the stream in accordance with established law. A writ of mandamus re-quiring the respondents to enforce all the irrigation laws and appropriation rights of relators is too general in character to invoke coercive processes and subject respondents to summary proceedings for a violation thereof.

The issuance of the writ is subject to the sound judicial discretion of the court. After a consideration of the pleadings, the evidence, and all the circumstances surrounding the case, we think the trial court was justified in the exercise of such discretion in denying the writ prayed for. We likewise believe that the action will accomplish the desired end without the issuance of the writ at the time and in the form in which it was asked. We therefore hold that the district court did not err in denying the writ.

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 ac-tion from an order of the superior court, made on January 7, 1921, restrain-ing 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 Sacra-mento River and its tributaries, to nonriparian land, that the amount of water flowing 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 defen-dants to show cause why such injunction should not be ordered. The order to show cause was issued upon the complaint in the action and upon an affi-davit 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 typewriting. 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 ap-propriation 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 before 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 wa-ter is devoted, that of domestic uses, it is, of course, necessary that the wa-ter be fit for use as a beverage 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

17

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 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 Antioch.

When the current of the water of the two rivers is sufficiently strong the influx of the incoming 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 ascends the stream. The claim of the city is that hitherto, until the excessive diversions of the defendants, the point at which this min-gling 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 exceed 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 conse-quence whereof the water furnished by it to its inhabitants 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 flow-ing in the Sacramento River during the dry season not less than 3,500 cubic feet of water per second at the city of Sacramento.

* * *

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The law in regard to the right of an appropriator or diverter of the wa-ters of a stream, as against subsequent appropriators above, to have the wa-ter of the stream at his point of diversion preserved in its natural state of pu-rity, 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 contami-nated, the rule thus fixed by our decisions, which in effect follow the com-mon 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.

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 benefi-cial 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 character of the water at any time. Dry seasons ad-vance 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 manner, the use of the wa-ters of the streams for the purpose of irrigating the lands of the state to ren-

19

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 main-tained at 3,500 second feet. In effect, therefore, its claim is that 3,080 sec-ond 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 diver-sion to the meeting of the waters would not divest or affect the right as against subsequent appropriators above, one whose pump was a hundred 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 ac-tual use, would, in practical results, appropriate or control 3,080 second feet of water of the river to supply his pipe with that infinitesimal 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 effect, appropriate all the water flowing in both of these large rivers. It would be hard to conceive 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 pur-poses, is absolutely necessary to the continued growth and prosperity of the state. The interior valleys are rapidly growing in population, and their capac-ity 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 deci-sions of this court from the beginning of its settlement by white men, and as it grows and increases in population 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, artificially produced after its use thereof began, from any causes whatever, even under

20

the circumstances 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 irriga-tion, 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 fre-quently 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 incorporated 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, there-fore, 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 remains whether, in view of the unprecedented conditions of the case at bar, the rules, applying to the ordinary pollution of water by the de-posit of deleterious matter in the stream above the injured party, are to be applied here.

Such questions do not often arise and the doctrine above adverted to should, of course, always 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: "When-ever it is found that, owing to the physical features and character of this state, and the peculiarities of its climate, soil, and productions, the applica-tion of a given common law rule by our courts tends constantly to cause in-justice 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.

In addition to the facts and conditions already mentioned there are others to be considered which made the practical application of the rule con-tended 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 av-

21

erage 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 appropria-tions of water for irrigation 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 appropriations 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 at-tempt such enterprises, or invest money therein, without previously ascer-taining whether there are any appropriators 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 ap-propriators 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 diversion or storage out of so many could not be ascertained with any de-gree 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 di-version as it has to the present litigation, it would have had the water uncon-taminated 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 expended 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 unreasonable and unjust to the inhabitants of the valleys above and highly detrimental to the public interests besides.

22

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 subsequent 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.

* * *

In the argument there is considerable discussion in regard to the sup-posed 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 concerning 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 con-sider 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 excessive quantity of water, as compared with any other crop, that it practically amounts to a waste, and that its culti-vation 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 appearance of a large lake. In some instances and in some soils the growing of rice, so it is said, requires nine times as much water as ordinary crops. It may be that under these circumstances rice culture in this state should not be encour-aged, 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 legisla-tive 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 ap-plication, 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-growers.

The order appealed from is reversed.

Lawlor, J. Wilbur, J. Waste, J. Shurtleff, J. Sloane, J. Lennon, J., con-curred.

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