Orange County Water Dist. v. City of Colton

• Decision Date: 24 April 1964
• Citation: 226 Cal.App.2d 642,38 Cal.Rptr. 286
• Parties: ORANGE COUNTY WATER DISTRICT, a public corporation, Plaintiff and Respondent, v. CITY OF COLTON, a municipal corporation, Defendant and Appellant. Civ. 7188.
• Court: California Court of Appeals Court of Appeals

Page 286

38 Cal.Rptr. 286

226 Cal.App.2d 642

ORANGE COUNTY WATER DISTRICT, a public corporation, Plaintiff and Respondent, v. CITY OF COLTON, a municipal corporation, Defendant and Appellant.

Civ. 7188.

District Court of Appeal, Fourth District, California.

April 24, 1964.

Robert J. Webb, San Bernardino and Alexander R. Tobin, Upland, for appellant.

Surr & Hellyer and John B. Surr, San Bernardino, as amici curiae in partial support of appellant.

Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, Santa Ana and Pillsbury, Madison & Sutro, San Francisco, for respondent.

Best, Best & Krieger, James H. Krieger, Arthur L. Littleworth and William R. De

Wolfe, Riverside, as amici curiae in support of respondent.

FINLEY, Justice pro tem.*

This is the fourth time that this case has been before the court on appeals. Prior decisions are reported in Orange County Water Dist. v. City of Riverside, 171 Cal.App.2d 518, 340 P.2d 1036; Orange County Water Dist. v. City of Riverside, 173 Cal.App.2d 137, 343 P.2d 450 and Orange County Water Dist. v. City of Riverside, 188 Cal.App.2d 566, 10 Cal.Rptr. 899. All of these decisions have become final as has the second amended judgment herein, which was entered on June 4, 1961, insofar as an appeal from the judgment itself as entered is concerned. In this second amended judgment the court:

'* * * reserves full jurisdiction, power and authority to modify, amend or amplify any of the provisions of this judgment whenever climatic changes or other developments affecting the physical, hydrological or other conditions may in the Court's opinion justify or require such modification, amendment or amplification, and to make and enter all supplemental orders and take all supplemental proceedings which the Court may deem necessary or proper to enforce the provisions of this judgment or any modification, amendment, or amplification thereof, either upon the Court's own motion or upon the application of any of the parties to this action.'

By stipulation of the parties, appellant's motion was submitted to the trial court on written briefs to which, with consent, 'amici curiae' briefs were added, one in partial support of appellant and one in support of respondent. The trial court thereupon filed its written 'ruling and order' denying the motion and directing the clerk to enter the following order in the minutes:

'By written and signed order of court filed herein, the motion of defendant City of Colton to modify and amend the judgment in this action and for supplementary order is denied'.

In pressing its motion for modification and amendment of the second amended judgment, appellant proposed to obtain from certain of the overlying land owners in the City of Colton a so-called 'Deed and Agreement' wherein said owners would grant to the San Bernardino Valley Municipal Water District, as the representative (or trustee) of appellant, as follows:

'* * * all of the undersigned's right, title and interest in and to the waters underlying the property hereinbefore described, together with the right to extract the same for the purpose of furnishing a water supply to said property, and together with all underground space beneath said property for the purpose of storing water and replenishing the water supply beneath said property.

'This instrument does not grant any surface rights or permit the district to place wells or pumping plants, or to enter upon or injure, the surface of said property in any manner whatsoever; and district shall extract water and make any replenishments to the underground water supply from facilities, and on lands, owned, leased or contracted by it, independent of this instrument.'

Appellant's position is that the rights sought through such grants from owners of land overlying the water basin are severable from the land itself for purposes of joint extraction and use of the underlying waters and that the rights thus joined are in legal contemplation to be viewed and treated in all respects as though the same rights were being exercised by each of the land owners individually through the use of a separate well on each individual parcel.

Respondent maintains that such a proposal finds no sanction in the water laws of this state; that the water rights of overlying owners are appurtenant to the respective parcels as an incident of individual ownership and as such they cannot be severed without all rights of appurtenance being lost to the parcels from which they are severed.

Appellant seeks to equate all incidents of riparian ownership of lands on above-ground streams with those of overlying owners of subterranean or percolating or flowing waters. Without going into the ramifications of riparian rights with the various similarities and differences between the purely riparian right and the right of lands overlying underground or percolating waters, suffice it to say that these rights are not entirely analogous and that all of the incident of one cannot, on account of physical considerations alone, apply to the other. The waters of a surface stream to which lands are riparian can be accurately measured and can be dammed, directed, diverted and caused to flow by gravity on different levels above or across the lands to which they are incident and upon which they are to be used. For this reason alone joint diversions and uses by riparian owners would be physically possible and the effects thereof could be accurately observed and measured where this would be quite impossible with underground waters. These reasons would appear to underlie the sanction announced in those cases cited by appellant where joint diversions by riparian owners on above- ground streams have been held to be a reasonable and lawful manner of making the most beneficial and economical use of riparian waters and about which lower users could not legally complain.

A description of the so-called Santa Ana River System is set forth in some detail in Orange County Water Dist. v. City of Riverside, supra, 173 Cal.App.2d 137, at pages 152-158, 343 P.2d 450. From what there appears, the litigants here are not dealing with flowing surface waters excepting to a very limited degree, but on the contrary with a combination of underground stream, percolating waters, and underground basins. In this sort of amalgamated system, the physical premises and reasoning giving rise to our riparian doctrines simply do not apply in all respects.

In the instant case, the second amended judgment purports primarily to adjudicate the prescriptive rights existing among litigants, which are all artificial creatures of the law. The judgment does, however, specifically exempt application of the adjudication as to such prescriptive rights from affecting the 'proper exercise by any defendant of any riparian or overlying rights which it may own, provided that the quantity of water so used shall not exceed the amount reasonably required for beneficial purposes upon the parcel of riparian or overlying land from which said water is produced.' (Emphasis added.)

This part of the judgment does not delineate any right or go further than to recognize, without so finding, that there may be existing appurtenant rights superior to, or on par with, the prescriptive rights adjudicated which can be exercised only in accordance with the provisions of Article 14, section 3 of the California Constitution, which provides that water ownership which is incidental to land ownership extends only to so much water as can be put to beneficial use. The court goes on to provide that the 'quantity so required [for beneficial purposes or use] may hereafter be fixed by the court from time to time by order supplementary to this judgment, upon...