Orange County Water Dist. v. City of Riverside

• Decision Date: 26 January 1961
• Citation: Orange County Water Dist. v. City of Riverside, 10 Cal.Rptr. 899, 188 Cal.App.2d 566 (Cal. App. 1961)
• Parties: ORANGE COUNTY WATER DISTRICT, a public corporation, Plaintiff and Respondent, v. CITY OF RIVERSIDE, a municipal corporation, City of Colton, a municipal corporation, City of San Bernardino, a municipal corporation, City of Redlands, a municipal corporation, Defendants and Appellants. Civ. 6399.
• Court: California Court of Appeals

Page 899

10 Cal.Rptr. 899

188 Cal.App.2d 566

ORANGE COUNTY WATER DISTRICT, a public corporation, Plaintiff and Respondent, v.CITY OF RIVERSIDE, a municipal corporation, City of Colton, a municipal corporation, City of San Bernardino, a municipal corporation, City of Redlands, a municipal corporation, Defendants and Appellants.

Civ. 6399.

District Court of Appeal, Fourth District, California.

Jan. 26, 1961.

Modification of Opinion on Denial of Petitions for Rehearing Feb. 20, 1961.

Hearing Denied April 19, 1961.

Leland J. Thompson, Jr., City Atty., Riverside, Cosgrove, Cramer, Diether & Rindge, Leonard A. Diether and Gordon Pearce, Sp. Counsel, Los Angeles, Lawrence A. Hutton, City Atty., Colton, Ralph H. Prince, City Att., San Bernardino, Edward F. Taylor, City Atty. for City of Redlands, San Bernardino, Douglas L. Edmonds, Sp. Counsel, Los Angeles, DeWitt A. Higgs, Sp. Counsel, San Diego, and James L. King, Sp. Counsel, San Bernardino, for appellants.

Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, A W. Rutan, Milford W. Dahl, Santa Ana, Pillsbury, Madison & Sutro, Eugene M. Prince, Eugene D. Bennett, James Michael, Samuel L. Wright, San Francisco, for respondent.

HAINES, Justice pro tem.

For the second time this case is before us on appeal.The first appeal (Orange County Water District v. City of Riverside et al., 173 Cal.App.2d 137, et seq., 343 P.2d 450) was determined on August 28, 1959; rehearing denied on September 18, 1959; and hearing denied by the Supreme Court on October 15, 1959.We therein reversed the judgment of the Superior Court and remanded the case to it with instructions to make new findings and enter a new judgment not inconsistent with the views which we expressed.After receiving the remittiturthe trial court proceeded to made new findings, prepared at its request by counsel for the respondent District, overruling numerous objections to them, and, on the basis of its new findings, entered on December 16, 1959, an amended judgment.From this the City of Riverside has appealed, and from it also the Cities of San Bernardino, Colton and Redlands jointly appeal.

It will be convenient first to deal with the brief of counsel for the City of Riverside insofar as they undertake to raise again the basic questions determined on the former appeal.

We noted in our original opinion (Orange County Water District v. City of Riverside et al., 173 Cal.App.2d 137, 163-164, 343 P.2d 450) that the complaint filed by the Orange County Water District(hereinafter referred to as the 'District') sufficiently alleged that there are not less than 120,000 acres of land within the District possessing overlying rights in the subterranean water fed by the Santa Ana River.We further held (173 Cal.App.2d at pages 177, 183, 343 P.2d at pages 472-476) that there was evidence before the trial court that as of 1955, the latest year for which statistics were available at the original trial, 90,115 acres of this land were in crop and had aggregate irrigation requirements of 126,617 acre feet of water per year, of which there was evidence tending to show that 108,485.2 acre feet were actually produced from what has been known in the record as the 'District Basin' and during the year between July 1, 1954, and June 30, 1955, devoted exclusively to agricultural use on the overlying lands.We also pointed out that the difference between the 108,485.2 acre feet so produced and the 126,617 needed (amounting to 18,131.8 acre feet) was wholly accounted for by the circumstance that many of the overlying landowners appear from the record, in lieu of pumping, to have resorted instead, for part of their water, to the two water companies that take their supplies from the River, for the most part from intakes below the Prado Dam, which is outside the District lands, but with insignificant exceptions, apply the water so taken to lands within the District, and by that token, are included among those represented in this litigation by the District.

In these circumstances, as the first point made on their present appeal, counsel for the City of Riverside assert that:

'The amended judgment herein is erroneous since it is based upon the 'needs' for water in the respondent district and not upon overlying water rights, if any, still retained by landowners therein for agricultural purposes.'

But the essence of an overlying right, which is in that respect strictly analogous to a riparian right, is the right of its owner, with due regard to the correlative rights of others owning lands overlying the same body of water to use on his overlying lands such water as he needs for beneficial uses, or since the amendment of the State Constitution in 1928, art. 14, § 3, such water as he reasonably needs for such uses.In order words, since this 1928amendment, the needs of such owner mean his reasonable needs and these are the measure of the right.Southern California Investment Co. v. Wilshire, 144 Cal. 68, 71, 77 P. 767;Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 695-706, 22 P.2d 5;Hudson v. Dailey, 156 Cal. 617, 628, 105 P. 748;Burr v. Maclay Rancho Water Co., 160 Cal. 268, 273, 116 P. 715;City of San Bernardino v. City of Riverside, 186 Cal. 7, 24, 198 P. 784.In the light of these decision, the trial court's finding of 126,617 acre feet per annum as the requirement of the acreage referred to for irrigation must be construed as meaning the reasonable need of that acreage and, by that token, if no other showing had been made, the measure of its water right.Such measure of its water right may practically be limited if it be shown that such right cannot be fully exercised with due regard to the correlative needs of overlying landowners requiring water for use on their overlying lands for other than agricultural needs, or it may be extinguished or limited if it be shown that it has been wholly or in some ascertainable degree, lost by the accrual of adverse prescriptive rights impinging upon it.But, until such a diminution is made to appear, the existence in overlying landowners of reasonable needs for irrigation purposes of 126,617 acre feet of water per annum and, therefore, of the initial right to take that amount each year is a prima facie showing that such right still remains unimpaired.Code Civ.Proc. § 1963, subd. 32.

So far, then, as appellants claim that such right has been curtailed or extinguished, such claim amounts to an affirmative defense and it becomes their burden to plead and to prove it, although, indeed, if it appears in the evidence actually admitted such evidence may not be disregarded.Appellants have, to be sure, set up in their answers what they claim to be their own prescriptive rights and the City of Riverside has affirmatively pleaded those of the two companies that divert water below the Prado Dam.Appellants have not in their pleadings committed themselves as to what diminution in the rights of the overlying landowners in the District they claim has resulted from the creation of the prescriptive rights so pleaded, nor have they pleaded as diminishing such overlying rights any prescriptive rights, urban or otherwise, of appropriators within the respondent District itself.Counsel now urge that all such prescriptive rights appearing in the evidence, that is, both the prescriptive rights of appellants themselves and those of others within the River system, if it is to be treated as a unit at all, must, from the very definition of prescription, be adverse to the rights of the overlying landowners.Pabst v. Finmand, 190 Cal. 124, 128, 211 P. 11 and cases cited.It is further urged that, since such prescriptive rights are adverse to the rights of the overlying landowners, the latter rights must, to the extent that they are thus adversely affected, be held to have been limited or extinguished.So far the position which counsel take is indisputable.

But the proof of a prescriptive right to a certain number of acre feet in an appropriator does not mean that the same number of acre feet must be deducted from the rights of the overlying landowners.Manifestly the extraction by appellant cities of the amounts which they are entitled to extract under their prescriptive rights will not have deprived the landowners in the District of anything like the same quantities of water.Much of the water used goes back in the underground strata.With the variable climatic conditions and the distance of transmission, the losses of water in the District Basin that such extractions above may from time to time cause are variable and incapable of exact measurement.Similarly any diminution caused by the use on the part of the two water companies referred to, of their prescriptive rights, may, while necessarily in some degree impinging on the rights of the overlying landowners have, by reason of the manner in which the water companies use these rights, actually worked a relatively small diminution of the overlying rights.So, too, with the use of their prescriptive rights by urban or other appropriators within the respondent District itself.The use of their rights in the manner in which it is done, though, as a matter of law, working some diminution of the rights of the overlying landowners, in actuality will almost never deprive the latter of water in the same amount quantitatively as the extractions of the appropriators.

Again, it is not to be assumed that, because the prescriptive right of an appropriator is adverse to that of the overlying landowner, that its adverse effect is necessarily to cut down the right of the landowner to water by any quantity at all.Non constat but that its effect may be merely to require him to go to a greater depth and incur greater expense in pumping the same quantity of water he had before.All this is well illustrated by the circumstance that of the quantity of 126,617 acre feet of water per annum to which the overlying landowners in this case must be deemed to have been...