Herminghaus v. South. California Edison Co. , 200 Cal. 81 ( 1926 )

I dissent. The decision in this case is important because of its effect generally upon the conservation of the waters of the state. The main opinion, it seems to me, will result in checking the progress of the state of California in conserving this most important natural resource. It unnecessarily pulls the teeth of the Water Commission Act. In order to have the beneficial use of less than one per cent of the maximum flow of the San Joaquin River on their riparian lands the plaintiffs are contending for the right to use the balance in such a way that, so far as they are concerned, over ninety-nine per cent of that flow is wasted. This is a highly unreasonable use or method of the use of water. The opinion not only supports the plaintiffs in that contention, but invalidates sections 11 and 42 of the Water Commission Act which constitute an endeavor on the part of the state to gather unto itself the waters of the state not used for a reasonably beneficial purpose and make them available for appropriation and use by the state and its inhabitants. It also supports the riparian proprietor in what may be called a vested right to an unreasonable use of water as against an appropriator. It perpetuates the doctrine to that effect announced before the adoption of the Water Commission Act, one of the purposes of which unquestionably was to abrogate the former rule. It affirms the rule laid down in Miller Lux v. Madera Canal etc. Co.,155 Cal. 59 [22 L.R.A. (N.S.) 391, 99 P. 502], where it was said that as between a riparian owner and an appropriator the riparian owner is not limited in his use of the water by any measure of reasonableness. That case was decided in 1909 before the adoption of the Water Commission Act in 1913. In section 11 of that act the legislature has provided that all waters flowing in any river, except in so far as the same are or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto or otherwise appropriated, are declared to be public waters of the state and subject to appropriation in accordance with the provisions of the act. In section 42 it is provided that the term "useful or beneficial purpose" as used in the act shall not be construed to mean the use in any one year of more than two and one-half acre-feet of water per acre in the irrigation of uncultivated areas of land not devoted to cultivated crops. These statutory provisions are in line with the declared policy of the state. In Pabst v.Finmand, 190 Cal. 124, 135 [211 P. 11, 15], it was said that "the declared policy of this state [is] to require the highest and greatest duty of water because of the immense importance to the state of the economical use of water," and as stated inAntioch v. Williams Irr. Dist., 188 Cal. 451, at page 461 [205 P. 688, 693]: "It may without exaggeration be said that the full use of the waters of rivers and mountain streams for irrigation, power, and like beneficial purposes, is absolutely necessary to the continued growth and prosperity of the state."

The rule that limits the right to the use of water to that which is reasonably necessary for beneficial purposes is now general throughout the western states and prevails in this state except as between a riparian owner and an appropriator. The rule of reason in the conservation and use of water has been applied as between appropriators (California etc. Co. v. Madera etc.Co., 167 Cal. 78 [138 P. 718]). It has been applied to the owners of underground water or percolating waters. (Katz v.Walkinshaw, 141 Cal. 116, 138 [99 Am. St. Rep. 35, 64 L.R.A. 236, 70 P. 663, 74 P. 766].) It has been applied to riparian owners as between themselves (Harris v. Harrison, 93 Cal. 676, 681 [29 P. 325]; Southern Cal. Inv. Co. v. Wilshire,144 Cal. 68 [77 P. 767]; Turner v. James Canal Co.,155 Cal. 82, 95 [132 Am. St. Rep. 59, 17 Ann. Cas. 823, 22 L.R.A. (N.S.) 401, 99 P. 520]). Since the declaration of this court that the measure of reasonableness in the use of water did not apply as between a riparian proprietor and an appropriator, the state, through the Water Commission Act, has in my judgment brought the riparian owner within the rule of reasonable use. The legislature has the right in the first instance to prescribe the standards of beneficial use and reasonable necessity that may be applied to the use of water. If those standards be unreasonable in their entirety or in any given case they may be tested in a judicial proceeding by any party aggrieved, just as police regulations with reference to the ownership of other kinds of property may be tested. (Village of Euclid v. Ambler Realty Co. (U.S.), 47 Sup. Ct. Rep. 114 [71 L.Ed. Adv. Ops. 171].) The main opinion brushes aside sections 11 and 42 as an arbitrary usurpation of power by the state resulting in interference with and destruction of vested rights. The state of Oregon, by a similar legislative enactment, has limited the right of the riparian owner to the use of that quantity of water which is actually applied to a beneficial use, in the adoption of its "Water Code" in 1909. In upholding the validity of that provision of the act the supreme court of Oregon said: "No one has any property in the water itself, but a simple usufruct. It was within the province of the legislature by the act of 1909, to define a vested right of a riparian owner, or to establish a rule as to when and under what conditions and to what extent a vested right should be deemed to be created in a riparian proprietor." (In re Hood River,114 Or. 112 [227 P. 1065, 1087].) The state of Washington also has restricted the riparian owner to reasonable use when in conflict with an appropriator. In the case of Brown v. Chase,125 Wn. 542 [217 P. 23], the court said that where the supply of water in a stream is more than ample for all possible riparian uses, the presumption is that the diversion by a nonriparian user will not injure any riparian right.

In 1850 the legislature provided that the common law of England should be the rule of decision in all of the courts of this state in so far as it was not inconsistent with or repugnant to the state and federal constitutions and the laws of this state. (Stats. 1850, p. 219.) This provision was codified in 1872. (Pol. Code, sec. 4468.) One of the characteristics of the common law is that it contains within itself its own repealer, that is to say, it changes as conditions change and adapts itself to new conditions, ex proprio vigore. It should be applied to our conditions when our conditions are similar to those out of which the common law arose, but when the common law is not applicable, because of different conditions, it should not be applied. (1 Kinney on Irrigation, secs. 509, 510; Motl v.Boyd (Tex.), 286 S.W. 458.) In Lux v. Haggin, 69 Cal. 255 [4 P. 919, 10 P. 674], the common-law doctrine of riparian rights was applied to water rights in this state. But the conditions prevailing over forty years ago when that case was decided were far different from conditions existing at the present time when the growth and prosperity of the state are so dependent upon the proper conservation of the excess waters of its rivers by storage for irrigation and power uses. That the common law, by its own principle, adapts itself to varying conditions and modifies its rules so as to subserve the ends of present requirements was recognized and decided in 1903 in the case of Katz v. Walkinshaw, supra. Rights to the use of real property, heretofore deemed vested, have been curtailed in the interest of the public welfare. It is axiomatic that all property is owned and possessed subject to reasonable regulations under the police power. There is nothing peculiar to a riparian right, which is part and parcel of land itself, that should exclude it from proper limitations in the interest of the people of the state. It is difficult to conceive of a question more intimately connected with the present and future industrial and economic development of the state than the conservation of the excess waters of its great rivers. The immediate question involved in this case is: How may the waters in excess of the reasonable requirements of the riparian owners be taken and put to a beneficial use? This question the state has endeavored to solve, at least in its initiatory stage, by the adoption of the Water Commission Act.

Citation of authority would seem to be unnecessary to support the proposition that no one may acquire a vested right to waste water in any form. That precise statement was made in the case ofEden Irr. Co. v. District Court, 61 Utah, 103 [211 P. 957], in the following language: "Let it be remembered that no one can acquire a vested right to waste water in any form. In this arid country water is life and may not be wasted. In this connection it is of the utmost importance to remember that no one can acquire an absolute title to water as he can to other property. A person having absolute title to property generally may ordinarily waste it, destroy it, or permit it to go to decay and become utterly useless at his pleasure. This he may not do with water." Abundant authority to the same effect could be cited. The asserted right of a riparian owner in this state to have the waters of a river flow over or past his land regardless of the reasonableness of the use or the benefit that such use may be to him should therefore not be confirmed, especially when such use results in a needless waste and the deprivation of the rights of the state and of those who would use such waters for beneficial purposes under the authority of the state. The case ofTulare Water Co. v. State Water Com., 187 Cal. 533 [202 P. 874], cited in the main opinion in support of the holding that sections 11 and 42 are void, did not purport to decide that the legislature was without power to safeguard the waters of the state from wastefulness and dissipation by the adoption of proper regulations. What that case did decide was that it was not competent for the legislature to confer upon the State Water Commission arbitrary power to refuse applications to appropriate waters in conformity with the provisions of the act. The power there sought to be exercised by the commission, as pointed out in the concurring opinion, was the exercise of a judicial function which it was not competent for the legislature to confer upon the commission. The sections of the act nullified by the main opinion do not attempt to confer judicial power on the commission. They merely declare the standards of beneficial use to be adhered to unless set aside when subjected to proper judicial test, and there is nothing in this case to indicate that those standards are unreasonable.

As to the particular facts in this case: The appellant is both a riparian owner and an appropriator on the upper reaches of the San Joaquin River. The plaintiffs are the owners of some 18,000 acres of land bordering on the river below. This tract is an uncultivated area of grazing land not devoted to cultivated crops. In the spring and early summer it is inundated by the waters of the river to such an extent that as such waters flow down the valley they resemble a moving lake. During that season of the year the flow amounts to from 10,000 to 20,000 cubic feet of water per second. The court found that a constant flow of 180 cubic feet per second from April 1st to October 1st of each year would irrigate the lands of the plaintiffs if the same were prepared for intensivecultivation. "The amount of water sufficient to cover the ground two and one-half feet deep is generally considered plenty if beneficially used; therefore, one second foot should, it has been said, be sufficient to irrigate one hundred to two hundred acres." (Wiel on Water Rights, 3d ed., p. 522, citing Hough v.Porter, 51 Or. 318 [95 P. 732, 98 P. 1083, 102 P. 728].) The amount found by the court to be sufficient was, therefore, no more and, in fact, was less than the statute declares may be used for beneficial purposes. In the face of that finding and notwithstanding its admitted support in the evidence the opinion proceeds to declare said sections of the statute nugatory.

The plaintiffs do not pretend to use or to be able to use the great volume of water that flows by their land on to San Francisco Bay in the sense that the term "use of water" is ordinarily employed, namely, for the purpose of sinking into or moistening the soil of their lands. The use they demand is to employ this tremendous flow as a booster or a means of conveyance or of transportation to lift the very small percentage of the flow so useful to them to and over their pasture lands. A more extravagant or wasteful use of water could not well be imagined. Two and one-half acre-feet of water is more than annually sinks into their lands. The balance is excess as to them and so far as they are concerned passes on to the sea and is utterly wasted. This waste is not only contrary to the statutory regulation but it works an injustice to the state, which is endeavoring to conserve such waters for useful and beneficial uses by appropriators under the laws of the state.

The main opinion stresses the fact that the court found that the proposed use of the waters of the river by the appellant was and is unreasonable as against the plaintiffs and that the use by the plaintiffs of the entire flow of the river was necessary to the enjoyment of their riparian right, and that therefore this court is bound by those findings. It may be conceded that the question of reasonableness is usually one of fact for the determination of the trial court, but it is also true that when the facts found in the light of the evidence disclose a use or a method of use of water that is so excessive and wasteful as to be palpably unreasonable, a question of law is then presented. (40 Cyc. 563.) The conclusion of the trial court that the storage plans and enterprise of the appellant will result in an unreasonable use of the waters of the river and the further conclusion that the natural flow of the river is necessary for the plaintiffs' purposes are predicated upon the continuance of the present status. Claim for the continuance of that status on the part of the plaintiffs is so unreasonable as to render their position inequitable and to justify the denial of the absolute injunction granted in this case. It would seem that the impounding of the waters by the appellant as proposed could only result in an equalization of the flow of the river with a constant release of sufficient water to develop the contiguous valley to a high state of cultivation and to the ultimate benefit of plaintiffs' lands. In fact, it has been said as to the overflow waters in this locality in the spring and early summer season that "at such times the San Joaquin river itself is carrying an abundance of water. The excess waters are not needed and are not used and are rather a detriment than a benefit to the land owners." (Miller Lux v. Enterprise etc. Co., 169 Cal. 415, 420 [147 P. 567, 569].)

If it be assumed that the plaintiffs would suffer detriment in being deprived of the use of such excess waters, wasteful though it be, and if it be assumed that it would not be necessary to reduce that detriment to damnum absque injuria, still the absolute injunction should not be granted. Such detriment would seem to be no more than the cost to the plaintiffs of conforming to a sane program of conservation by the construction of necessary diversion work. The court found that such preparation would entail a large expenditure of money, but it did not find the amount that would be required. The cause should at least be remanded for the purpose of ascertaining the amount of that expenditure. In other words, whatever present detriment might accrue to the plaintiffs by reason of being deprived of the lifting facilities afforded by the flow in excess of what they reasonably need should be ascertained. The fact that the appellant possesses the power of eminent domain is not a justification for the injunction as ordered. That the appellant has that right supports the view that the trial court in this proceeding and in the injunction order itself could adequately provide for compensation to the plaintiffs for the damage suffered, if any. In such a case when "the court can arrive in terms of money at the loss which plaintiff has sustained, an absolute injunction should not be granted, but an injunction conditional merely upon the failure of the defendant to make good the damage which results from its work. . . . The defendant in effect would be held to be damaging private property without just compensation first made to the owner, and, failing to make such compensation, should be enjoined from further damage. For, as was said by this court in MontecitoValley v. Santa Barbara, 144 Cal. 587 [77 P. 1113], in a case similar to this, `a prohibitory injunction should only be granted if any and all other forms of relief should be found inadequate.'" (Newport v. Temescal Water Co., 149 Cal. 531 [6 L.R.A. (N.S.) 1098, 87 P. 372].) In a condemnation proceeding the court could arrive in terms of money at the loss which the plaintiffs would sustain and no good reason appears why it may not do so in this proceeding.

I am of the opinion that sections 11 and 42 of the Water Commission Act constitute valid regulations in the interest of the conservation of the waters of the state; that as between a riparian owner and an appropriator of water the rule of reasonable use should apply to the one the same as to the other; that the Water Commission Act has properly established that rule and that this court should hold in harmony with the legislative declaration when such declaration, as here, appears to be just and reasonable in recognition of the vested riparian right; that the appellant as an appropriator of water has the right of storage and should have its reasonable exercise of that right balanced only against the reasonable exercise by the plaintiffs of their riparian right; that the plaintiffs should not be upheld in their insistence that the present wasteful use or method of use of waters of the river shall continue, and that in any event the method of procedure suggested in Newport v. Temescal Water Co.,supra, at page 538, should be adopted, viz., that of requiring the trial court in the exercise of the equity power it possesses to find the damage, if any, suffered by the plaintiffs and under the prayer of the appellant for general relief make the "injunction conditional merely upon the failure of the defendant to make good the damage." In that way the extensive project undertaken by the appellant need not be stopped, the preference and other lawful rights of the plaintiffs would be protected, and the state be not impeded in working out its highly important task of conserving the waters of the state for this and coming generations. That such is the duty of the state can admit of no doubt. Its purpose to that end is commended and urged by the attorney-general of the United States, the attorney-general of California, the attorney for the state division of water rights, and counsel for numerous irrigation districts appearing as amicicuriae herein. It seems to me that the appropriate opportunity to interpret the laws of the state in harmony with present day requirements as contemplated by the statute is presented in the case at bar.

Rehearing denied.

Shenk, J., Langdon, J., and Finch, J., pro tem., voted for a rehearing.