People v. Weaver

• Decision Date: 25 July 1983
• Docket Number: No. 143284,Cr. A,143284
• Parties: 147 Cal.App.3d Supp. 23 The PEOPLE, Plaintiff and Appellant, v. Donald Ward WEAVER et al., Defendants and Respondents. Appellate Department, Superior Court, Santa Barbara County, California
• Court: California Superior Court

Page 521

197 Cal.Rptr. 521

147 Cal.App.3d Supp. 23

The PEOPLE, Plaintiff and Appellant, v. Donald Ward WEAVER et al., Defendants and Respondents.

Cr. A. No. 143284.

Appellate Department, Superior Court, Santa Barbara County, California.

July 25, 1983.

As Modified Aug. 2, 1983.

Thomas W. Sneddon, Jr., Dist. Atty., and Gerald McC. Franklin, Deputy Dist. Atty., for plaintiff and appellant. ¹

Hatch & Parent and Peter N. Brown, Santa Barbara, for defendants and respondents.1

OPINION

McMAHON, Judge.

Respondents were charged with violating section 1603 of the Fish and Game Code. Second amended complaint specifically alleged that between February 4, 1982, and March 8, 1983, respondents "did substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of the Tajigas Creek." Respondents demurred on the ground that this language, taken from the language of the statute, was vague. This particular demurrer, was finally sustained without leave to amend and the People appeal from the ensuing judgment of dismissal.

INTRODUCTION

The reader is undoubtedly aware that all water in California is the property of the People of this state. Indeed, the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent to which they are capable, and that the waste or unreasonable use of water must be prevented (Cal. Const., art. X, § 2, Wat.Code, §§ 102 and 1201; National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441-443, 189 Cal.Rptr. 346, 658 P.2d 709).

Just as the State of California holds all of its navigable waterways ² and the lands lying beneath them as a trustee of a public trust for the benefit of the People (Colberg Inc. v. State of California ex rel. Dept. of Pub. Wks. (1967) 67 Cal.2d 408, 416, 62 Cal.Rptr. 401, 432 P.2d 3), the state acts as a trustee of all waters for the benefit of the People of the State (Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal.2d 597, 625 ), reversed on other grounds sub nom. in Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313.

Diversion of water is a trespass which may be enjoined by the state (Wat.Code, § 1052). A person desiring to appropriate water cannot do so unless he obtains a permit (Water Code, §§ 1225, 1250 et seq.; People v. Shirokow (1980) 26 Cal.3d 301, 309-310, 162 Cal.Rptr. 30, 605 P.2d 859. No dam or reservoir can be constructed or enlarged without the state's approval. (See Wat.Code, §§ 6025, 6077, 6150 and 6200.)

A person who dumps trash, garbage or construction material into a bay, lagoon, channel creek or stream or upon a bank is guilty of a misdemeanor (Pen.Code, § 374e). One cannot install a septic tank upon the borders of any stream which is used to supply water to the public if the water source would thereby become polluted (Health & Saf.Code, § 4451). It is unlawful to wash clothes in a stream used for drinking purposes (Health & Saf.Code, § 4456). (1) No one can allow horses, cattle, sheep or any kind of livestock or domestic animals to pollute waters used for drinking purposes (Health & Saf.Code, § 4454) and the maintenance of a hogpen and manure pile adjacent to a river bank may be enjoined. (People v. Elk River M. & L. Co. (1895) 107 Cal. 214, 40 P. 486; Wade v. Campbell (1962) 200 Cal.App.2d 54, 57, 19 Cal.Rptr. 173, 92 A.L.R.2d 966).

(2) An act of pollution, obstruction, or diversion of water by a governmental entity also constitutes a nuisance under Civil Code section 3479 (Helix Land Co. v. City of San Diego (1978) 82 Cal.App.3d 932, 949, 147 Cal.Rptr. 683).

(3) While an injunction can be sought to prevent by diversion, dimunition or increase of flow in its natural channels (See Code Civ.Proc., § 530), it has been held that straightening, widening or deepening the channel of a stream to improve the drainage entails no "diversion" of the waters therein (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 26, 119 P.2d 1; Callens v. County of Orange (1954) 129 Cal.App.2d 255, 259-260, 276 P.2d 886). Hence, so long as the improvements which accelerate the flow of water follow the natural stream or natural drainage, no cause of action arises from an overflow (Deckert v. County of Riverside (1981) 115 Cal.App.3d 885, 895-896, 171 Cal.Rptr. 865; cf. Bauer v. County of Ventura (1955) 45 Cal.2d 276, 283, 289 P.2d 1).

(4) Although the reader might visualize a stream as a watercourse through which water flows during all times of the year, the term "stream" is more broadly defined: " 'A stream is a watercourse having a source and terminus, banks and channel, through which waters flow, at least periodically. Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear. (Citation.) Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters. (Citations.) ... [A] continuous flow of water is not necessary to constitute a stream and its waters stream waters' " (Mogle v. Moore (1940) 16 Cal.2d 1, 9, 104 P.2d 785). Indeed, a wash ... "is a watercourse in the legal sense although dry except in the winter and spring and very possibly at intervals even in those seasons." (San Gabriel V.C. Club v. Los Angeles (1920) 182 Cal. 392, 397, 188 P. 554, 9 A.L.R. 1200, see also, Weck v. L.A. County Flood Dist. (1947) 80 Cal.App.2d 182, 193, 181 P.2d 935.)

Therefore, it is obvious that water rights have been the subject of pervasive regulation in California. We next must ask why the Legislature should be so concerned with changes in the banks of an intermittent river, or the removal of material from the stream beds. To attempt to supply an answer, we must recount a bit of California history.

Over 100 years, gold drew throngs of adventurers to early mining communities in the Sierra Nevada. When the halcyon years were over, a few earnest argonauts decamped and went to the river bottoms, and pointed great water cannons, called monitors, at the hillsides hoping to dislodge sparkles of gold from the sandy detritus: In the process, they created new towns in the watersheds of the Bear, American and Yuba Rivers, with colorful names, such as You Bet, Red Dog, French Corral, and Timbuctoo.

Although considerable quantities of gold washed down and were separated from the gravel, the hydraulic mines annually discharged 600,000 cubic yards of debris, which soon choked the American and Sacramento Rivers with tailings, raised the beds of these rivers, impairing navigability, fouling the waters, and angering farmers.

Amid political turmoil, the matter finally reached our high court, which held that an injunction should issue, based upon the premise that the rights of the people in navigable rivers were paramount, and that any intrusions upon that right constituted a nuisance (People v. Gold Run D. & M. Co. (1884) 66 Cal. 138, 4 P. 1152). ³

This decision led to the virtual demise of hydraulic mining, and the Legislature finally responded by declaring that hydraulic mining could only be carried on if it could be done without material injury to navigable streams or the lands adjacent thereto (Pub. Resources Code, § 2602). Placer miners must construct settling ponds, and take other precautions, and the operation of such a mine may be enjoined if it causes the water supply to be rendered unfit or dangerous for human consumption (Pub. Resources Code, §§ 2555 and 2558). In addition, one who desires to reflect, alter or divert the course of a nonnavigable stream in any surface mining dredging operation must obtain the approval of the board of supervisors (Wat.Code, § 7047).

Turning our attention to the immediate origins of section 1603 of the Fish and Game Code, it appears over the years, the Legislature, concerned with the decline in the fish population, enacted a number of laws including those, 1) prohibiting persons from depositing any substance or material deleterous to fish where it could pass into the waters of the state (Fish & G.Code, § 5650, subd. (f)), see also People v. Truckee Lumber Co. (1897) 116 Cal. 397, 48 P. 374 (sawdust and waste polluted stream and killed fish), 2) prohibiting mining operations in the Trinity and Klammath game district for four months each year, except when mining debris could not pass into the waters, (Fish & G.Code, § 5800), 3) making it unlawful to construct or maintain devices in certain streams which impeded the passing of fish up and down the stream (Fish & G.Code, § 5901), 4) authorizing the Fish and Game Commission to require the owner of any new or enlarged dam to install and maintain fishways (Fish & G.Code, §§ 5933 and 5935), and, 5) allowing access to waters impounded by a dam to fishermen during the open season (Fish & G.Code, § 5943); State of California v. San Luis Obispo Sportsman's Assn. (1978) 22 Cal.3d 440, 149 Cal.Rptr. 482, 584 P.2d 1088, see also, 53 Cal.Atty.Gen. 332, 340-343 (1970) (discussing the fact that proposed damming of streams created serious problems for anadromous and resident species such as salmon, steelhead and trout).

Despite these efforts, siltation caused by the removal and washing of aggregate seriously affected anadromous fish, such as salmon and steelhead, by preventing spawning and suffocating eggs and fry. Aggregate operations had rendered certain portions of the Tuolumne River useless for spawning and placed the American River in jeopardy. See Report of Senate Permanent Fact Finding Committee on Natural Resources, Aggregate Removal From Streambeds, section 1, pages 13, 17, 18, 2 Appendix to Journal of the Senate (1961 Reg.Sess.Vol.) (quoted in 56 Ops.Cal.Atty.Gen. 360, 362, 364 (1973)).

Therefore, the Legislature enacted what is now section 1603 of the Fish and Game Code which makes it unlawful to substantially divert or obstruct the natural flow, or...