Joslin v. Marin Municipal Water Dist.

Decision Date28 July 1967
Docket NumberS.F. 22503
Citation60 Cal.Rptr. 377,67 Cal.2d 132,429 P.2d 889
CourtCalifornia Supreme Court
Parties, 429 P.2d 889 Donald JOSLIN and Douglas T. Joslin, Plaintiffs and Appellants, v. MARIN MUNICIPAL WATER DISTRICT, Defendant and Respondent. In Bank

Bagshaw, Martinelli, Weissich & Jordan, W. O. Weissich and Hadden W. Roth, San Rafael, for plaintiffs and appellants.

Riede & Elliott, Robert W. Elliott, Ronald D. Schenck, San Rafael, Bacigalupi, Elkus, Salinger & Rosenberg, Tadini Bacigalupi, Jr. and William G. Fleckles, San Francisco, for defendant and respondent.

Frederick Bold, Jr., Richmond, as amicus curiae on behalf of defendant and respondent.

SULLIVAN, Justice.

Plaintiffs, owners of lands riparian to Nicasio Creek in Marin County, appeal from a summary judgment for defendant entered in an action in inverse condemnation for damages resulting from defendant's construction of a dam across said creek at a point above plaintiffs' lands.

Plaintiffs' third amended complaint (complaint) alleges that since March 1955 plaintiffs have been, and now are, the owners of a parcel of five acres of land; that a stream (Nicasio Creek) runs through their property; that the normal flow of the waters of the stream carried in suspension rock, sand and gravel which were deposited on plaintiffs' lands; that plaintiffs operated on their property a rock and gravel business in the course of which they sold and used the deposits of rock and gravel; that defendant is a municipal water district organized and existing under the Municipal Water District Act of 1911; that prior to May 1962 defendant constructed a dam across Nicasio Creek; that as a result the normal flow of waters in said stream was obstructed to such an extent that 'the normal and usual replenishment of rocks and gravel' upon plaintiffs' lands ceased; that the value of plaintiffs' lands was thereby diminished in the amount of $250,000, and that plaintiffs had been deprived of gravel and rock having an accrued value of $25,000 at the time of filing the complaint.

Defendant moved for summary judgment. The declaration of its general manager, filed in support of the motion, states that defendant duly filed its application with the State Water Rights Board (board) for a permit to appropriate and store unappropriated waters from Nicasio Creek for municipal water supply purposes (Wat.Code, §§ 1250--1266); that it published notices of its application as required by law (Wat.Code, §§ 1300--1316); that protests to the application (Wat.Code, § 1330), none of which were by plaintiffs, were filed with and duly resolved by the board; that the board issued its permit on May 31, 1961 (Wat.Code, §§ 1340--1353); that pursuant to plans approved by the board (see Wat.Code, §§ 1382, 1393) the dam was constructed and completed on August 21, 1961, and defendant began to store water pursuant to its permit; that defendant had no notice that plaintiffs claimed any right to use the waters of Nicasio Creek for the purposes stated in their complaint until plaintiffs' claim was presented to defendant on April 3, 1963; that plaintiffs' lands are approximately one mile downstream from defendant's dam with other riparian owners intervening; and that defendant did not physically enter upon or take by eminent domain any of plaintiffs' real property by constructing the dam or reservoir.

Plaintiffs' declaration filed in opposition to the motion merely states that at no time up to the completion of the Nicasio Dam on August 21, 1961, did plaintiffs have actual knowledge of any application made to the board to use, store or divert water nor did they receive any notice of defendant's intention to do so.

The court granted defendant's motion for summary judgment 'upon the ground there was no substantive right of plaintiffs violated by defendant.' 1

With some variance in language the parties assert that the principal issue before us is whether defendant, an upstream appropriator of water, is liable in damages to plaintiffs, downstream riparian owners, by reason of having appropriated the waters of the creek under the above-mentioned circumstances.

To bring this appeal into focus, we must first briefly review the growth and development of California water law. In its first stage which began with the 'gold rush,' this law dealt mainly with those who diverted water from streams in the public domain for mining purposes and sought to adjudicate the competing claims of the parties using such water on the basis of a principle of prior appropriation. 2 Subsequently with the increasing importance of agriculture over mining, the courts became more involved with riparian rights. (See fn. 2, ante, address by Shaw, C.J., 189 Cal. 779, 789--791.) This doctrine which had its genesis in the common law of England initially was made to rest in California on the basic principle 'that the riparian proprietor is entitled to the full flow of the stream, reduced only by the proper riparian uses which may be made of the water by proprietors above him.' (Miller & Lux v. Enterprise C. etc. Co. (1915) 169 Cal. 415, 443, 147 P. 567, 578; see Lux v. Haggin (1886) 69 Cal. 255, 390--394, 4 P. 919, 10 P. 674; Herminghaus v. Southern California Edison Co. (1926) 200 Cal. 81, 94--96, 252 P. 607.) 3 Such riparian rights extended to 'the entire flow of the waters of (a) river, considering the same with its seasonal accretions as the usual and ordinary flow of said stream during each and every year.' (Herminghaus v. Southern California Edison Co., supra, at p. 91, 252 P. at p. 611.)

It was inevitable that the claims of appropriators and riparian owners would collide and that the legal principles upon which they were asserted would appear to be in conflict. Reconciling these principles, 4 this court in the leading case of Lux v. Haggin, supra, 69 Cal. 255, 4 P. 919, 10 P. 674, declared "that the rights of the riparian owners to the use of the waters of the abutting stream were paramount to the rights of any other persons thereto; that such rights were parcel of the land and that any diminution of the stream against the will of the riparian owner by other persons was an actionable injury. The question was settled by that case and the riparian right has never since been disputed." (Herminghaus v. Southern California Edison Co., supra, 200 Cal. 81, 95, 252 P. 607, 613 quoting from address of Shaw, C.J., see fn. 2 ante.) As a result the principle emerged that an upstream appropriator could not deprive a downstream riparian owner of his right to the use of the full flow of a stream, even though only a small percentage of the flow was utilized the benefit the lands of the downstream riparian. (Herminghaus v. Southern California Edison Co., supra, 200 Cal. 81, 94--103, 252 P. 607; see also Tulare Irr. Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 523--524, 45 P.2d 972; Miller & Lux v. Madera Canal etc. Co. (1909) 155 Cal. 59, 64, 99 P. 502, 22 L.R.A.,N.S., 391. Lux v. Haggin, supra, 69 Cal. 255, 4 P. 919, 10 P. 674.)

Thereafter, and in apparent response to the Herminghaus decision (see Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 699--700, 22 P.2d 5), the California Constitution was amended in 1928. (Art XIV, § 3.) 5 The amendment was generally construed as applying a rule of reasonable use 'to all water rights enjoyed or asserted in this state, whether the same be grounded on the riparian right or the right, analogous to the riparian right, of the overlying land owner, or the percolating water right, or the appropriative right.' (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 383, 40 P.2d 486, 499). Thus the rule of reasonableness of use as a measure of the water right which had theretofore been applied as between other contesting claimants 6 but had been denied application as between riparian owners and appropriators was finally extended to include the latter. (Peabody v. City of Vallejo, supra, at p. 367, 40 P.2d 486; Gin S. Chow v. City of Santa Barbara, supra, at pp. 703--705, 22 P.2d 5; see generally 1 Waters & Water Rights (Clark 1967) § 19.1.)

As epitomized in Peabody, the amendment is said to declare: '1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served. 2. Such right does not extend to the waste of water. 3. Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water. 4. Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution.' (2 Cal.2d 351, 367, 40 P.2d 486, 491.)

It has been long and clearly settled in California that the effect of the passage of article XIV, section 3, 'has been to modify the long-standing riparian doctrine * * * and to apply, by constitutional mandate the doctrine of reasonable use between riparian owners and appropriators, and between overlying owners and appropriators.' (Tulare Irr. Dist. v. Lindsay-Strathmore Dist., supra, 3 Cal.2d 489 524, 45 P.2d 972, 986; 7 see also Gin S. Chow v. City of Santa Barbara, supra, 217 Cal. 673, 703--705, 22 P.2d 5; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 367, 40 P.2d 486; City of Lodi v. East Bay Mun. Utility Dist. (1936) 7 Cal.2d 316, 339, 60 P.2d 439; Miller & Lux v. San Joaquin L. & P. Corp. (1937) 8 Cal.2d 427, 435, 65 P.2d 1289; Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 556--557, 81 P.2d 533; Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal.2d 597, 623, 306 P.2d 824.) 'The right to the waste of water is not now included in the riparian right.' (Peabody v. City of Vallejo, supra, at p. 368, 40 P.2d at p. 492.) What is a reasonable use or method of use of water is a question of fact to be determined according to the circumstances in each particular case. (Gin S. Chow v. City of Santa Barbara, supra, at p. 706, 22 P.2d 5.)

In Peabody, several...

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