People v. Shirokow
| Decision Date | 01 March 1979 |
| Citation | 90 Cal.App.3d 1,153 Cal.Rptr. 141 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Appellant. v. George A. SHIROKOW et al., Defendants and Respondents. Civ. 3960. |
This appeal presents a question which has been debated for over 60 years in California: 1 Did the Legislature in enacting the 1913 Water Commission Act () intend to regulate the Prescriptive taking of surface water? For the reasons to be explained, we hold that the Legislature intended to regulate only the appropriation of surplus or uncommitted water in the rivers and streams of California. Since prescription involves the adverse taking of water which is committed to downstream riparian owners or prior appropriators, it is not within the regulatory scope of the act.
The procedural chronology and facts of the case are as follows: On March 1, 1976, the People of the State of California (State) at the request of the State Water Resources Control Board (Board) filed a complaint for injunction against respondent Shirokow pursuant to Water Code section 1052. (All subsequent code citations refer to the Water Code unless specified otherwise.) This section declares to be a trespass the unauthorized diversion or use of water subject to the regulatory provisions of the Water Commission Act and provides that the Board may bring an action to have such trespass enjoined. The complaint alleged that prior to 1960 a dam had been constructed on respondent's property on Arnold Creek in Madera County and that the dam formed a reservoir in which water was stored each year without a permit from the Board to do so. Respondent admitted the construction and use of the dam without a permit but alleged as a defense that he and his predecessors in interest had impounded the water openly, notoriously, under claim of right and continuously since before 1960; that the diversion of water was adverse to all persons owning downstream property and that respondent and his predecessors had paid all taxes assessed thereon. Respondent alleged that in so doing a prescriptive right was acquired to continue the impoundment of the water. The trial court found in respondent's favor on his defense and denied the injunctive relief sought by appellant.
Respondent owns approximately 4,000 acres of land in the low mountain area of eastern Madera County. He acquired the property in 1965 and uses it for cattle grazing and recreational purposes. The major portion of the property is located within the watershed of Arnold Creek and is riparian thereto. The headwaters of Arnold Creek start approximately one mile north of respondent's acreage and run through his property into Finegold Creek which in turn flows to the San Joaquin River above Friant Dam. Arnold Creek is an intermittent stream which flows from mid-winter to early spring of each year and is normally dry in the summer and fall months.
Sometime before 1960 respondent's predecessor in interest built a diversion dam and reservoir on Arnold Creek to store water for livestock watering and fishing for the entire year. The reservoir has a capacity of 19.5 acre feet. 2 The dam captures the first flows of Arnold Creek each winter until it is filled and then, except for evaporation, seepage and livestock watering, the flow passes over the spillway and continues down the creek to the San Joaquin River above Friant Dam where the water is stored and impounded for diversion into the Madera and Friant-Kern Canals or released down the San Joaquin River. All of the flow of Arnold Creek which passes respondent's dam eventually goes to downstream users. The water released at Friant is controlled by the United States government as part of the federal Central Valley Project and is not a part of the state water system. The State has no proprietary interest in the water.
Since its construction, the dam, reservoir and impounded water have been taxed by Madera County as an improvement on the real property, and all taxes thereon have been paid by respondent and his predecessors in interest. In the communities of North Fork and O'Neals in Madera County, it has been common knowledge that the dam was used to impound and store water. When purchasing the property on which the dam is located, respondent relied upon the fact that the dam had impounded the water of Arnold Creek at that point for more than five years preceding the purchase. The water, however, had not been diverted or stored before December 19, 1914, the effective date of the Water Commission Act.
No permit or license has ever been obtained by respondent or his predecessors in interest from the Board to appropriate or divert the waters of Arnold Creek.
We begin our journey through the elusive concepts of water rights law by describing the three doctrines that historically have governed the right to the use of water in the streams of California. They are the appropriative, the riparian, and the prescriptive rights doctrines. 3 The Appropriative doctrine is defined as follows: "The appropriative right is an exclusive right, acquired under the procedure provided by law, to divert from a public water supply a specific quantity of water provided it is available there In excess of the requirements of all existing vested rights and to apply such water to a specific beneficial use . . . in preference to all appropriative rights of later priority" (Hutchins, Water Rights Laws in the Nineteen Western States (1971) vol. 1, at p. 226, emphasis added). The water may be used on or in connection with lands away from streams, as well as lands contiguous to streams. The first appropriator of water from a particular water course has the prior exclusive right to the use of the available water to the extent of his appropriation. Each subsequent appropriator has a like priority with respect to all later appropriators. The appropriative right relates to a specific quantity of water, and is good as long as the right continues to be exercised. The right may be acquired for any use of water that is beneficial and reasonable. (Hutchins, The California Law of Water Rights, Supra, p. 40.)
Prior to 1872, appropriative water rights could be acquired simply by taking and beneficially using water. This was based on the custom which had originated in the use of water to extract gold from the Sierra foothills often on lands some distance from the streams. (Id., at p. 41; see also Powell, Compromises of Conflicting Claims. A Century of California Law, 1760-1860 (1977) pp. 180-181; Chief Justice Show, Development of the Law of Waters in the West (1922) 189 Cal. 779.) In 1872, Civil Code sections 1410 to 1422 were enacted establishing an optional permit procedure for perfecting an appropriation. Provision was made for posting a notice of appropriation at the proposed point of diversion and recording a copy with the county recorder. If the statutory procedure were followed and the appropriation completed with due diligence, priority related back to the date of posting; otherwise, the appropriator's priority did not attach until water was beneficially used (Hutchins, The California Law of Water Rights, Supra, at pp. 89-92).
The Riparian doctrine accords to the owner of land contiguous to a water course a right to the use of water on such land. The riparian right is a species of real property and is appurtenant to the land. The use of the water is limited to the riparian land and it may be used for domestic, agricultural and other beneficial purposes. The use must be reasonable in relation to the reasonable requirements of all other owners of lands contiguous to the same water course; hence, the riparian right is proportionate, not exclusive and is not measured by a specific quantity of water. Important to our decision is the rule that in the absence of prescription a riparian right is not lost by disuse; it extends to all future reasonable and beneficial use of water on the riparian land. (Id. at pp. 40-41.) The concept of unexercised or Prospective riparian water rights is affirmed in the 1928 constitutional amendment of article XIV, section 3 (now article X, section 2) which provides, "Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, Or may be made adaptable, in view of such reasonable and beneficial uses. . . ." (Emphasis added.) In Tulare Dist. v. Lindsay-Strathmore Dist. (1935)3 Cal.2d 489, 45 P.2d 972, our Supreme Court confirmed the existence and preference accorded to prospective riparian rights. (Id., at p. 525, 45 P.2d at p. 986; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424, 90 P.2d 537; Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 22 P.2d 5; In re Waters of Soquel Creek Stream System (1978) 79 Cal.App.3d 682, 685-686, 145 Cal.Rptr. 146, 147-148, hg. den.)
The Prescriptive right doctrine is a method by which the right to water may be acquired by an open, adverse and continuous use of...
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