Tehachapi-Cummings County Water Dist., v. Armstrong, TEHACHAPI-CUMMINGS

CourtCalifornia Court of Appeals
Writing for the CourtFRANSON
Citation122 Cal.Rptr. 918,49 Cal.App.3d 992
PartiesCOUNTY WATER DISTRICT, Plaintiff and Respondent, v. Frank ARMSTRONG et al., Defendants and Respondents, State of California, etc., Defendant and Appellant.
Decision Date18 July 1975
Docket NumberTEHACHAPI-CUMMINGS,No. 1935

Page 918

122 Cal.Rptr. 918
49 Cal.App.3d 992
TEHACHAPI-CUMMINGS COUNTY WATER DISTRICT, Plaintiff and Respondent,
v.
Frank ARMSTRONG et al., Defendants and Respondents,
State of California, etc., Defendant and Appellant.
No. 1935.
Court of Appeal, Fifth District, California.
July 18, 1975.
As Modified on Denial of Rehearing Aug. 6, 1975.

[49 Cal.App.3d 995]

Page 920

Evelle J. Younger, Atty. Gen., Sacramento, Carl Boronkay, Asst. Atty. Gen., Douglas B. Noble and Jane C. Goichman, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

Martin E. Whelan, Jr., Inc., Martin E. Whelan, Jr., Whittier, for defendants and respondents.

OPINION

FRANSON, Associate Justice.

Appeal from a judgment adjudication the underground water rights in the Cummings Basin in Kern County, continuing the jurisdiction in the superior court, and appointing the respondent district as watermaster to monitor the ground water production in the basin. Jay R. Ballantyne, Judge. Reversed in part with directions; affirmed in part.

STATEMENT OF THE CASE

This action was initiated by respondent Tehachapi-Cummings Water District, 1 in October 1966, seeking an adjudication of the underground water rights in Cummings Basin and an injunction against increasing extractions or diversions of the water pending the lawsuit, a temporary injunction reducing the collective extractions of water to the safe yield, and a permanent injunction to restrict future extractions of

Page 921

water in accordance with the priorities and rights to be determined by the court. It was alleged that the ground water annually extracted by the defendant overlying owners of land in the basin amounted to substantially all of the water extracted from the basin and that the defendants owned substantially all of the rights to pump water from the basin.

The appellant State of California filed an answer on September 27, 1967, alleging that since 1930 it had pumped water from the basin in a reasonable and beneficial manner as needed for the domestic, industrial and irrigation uses of the Tehachapi prison situated at Cummings Valley; that by reason of such governmental use, appellant could not be sued as it had not consented to be sued nor had it waived its sovereign immunity. It further alleged that its water rights were paramount to the claimed rights of the other defendants to pump water from the basin.

In its pretrial statement filed on June 25, 1970, respondent district alleged that during each water year from 1949 to the commencement of [49 Cal.App.3d 996] the action, there had been an annual overdraft 2 upon the basin with an increasing condition of accumulated overdraft, that the continuing overdraft resulted in a lower water level with progressive deepening of wells and increased costs of pumping. It was further alleged that all extractions of water from the basin from 1949 to the commencement of the suit were open, notorious, adverse, hostile, under claim of right, and uninterrupted as to all of the other parties to the suit. It was alleged that the court should adopt a physical solution and restrict pumping by the parties to their respective shares of the safe yield 3 of the basin which was alleged to be 4,500 acre-feet per year. The pretrial statement alleged that the respondent district should be appointed watermaster to administer the provisions of the judgment and that the court should reserve continuing jurisdiction of the action.

On March 1, 1971, respondent amended its pretrial statement to allege that recent hydrological date indicated that the safe yield of 4,500 acre-feet per year was too high; notwithstanding this downward modification the date also indicated that water extractions for the preceding year were not in excess of safe yield so that there was no immediate need for pumping restrictions in the basin. However, it was alleged that the history of water production in the basin and the advent of subdivisions in the area necessitated that the export of water be injoined, rights adjudicated and a watermaster appointed. 4

Numerous defendants concurred in the respondent's pretrial statement. Parties who failed to file pretrial statements were deemed to have concurred in respondent's pretrial statement. Various other parties arrived at stipulations with respondent so that by the end of the trial appellant and respondent district were the only parties represented by counsel in court.

Trial was held June 14--22, 1971. A notice of intended decision was filed on August 23, 1971, and findings of fact, conclusions of law and the judgment were filed on March 6, 1972. Only appellant has appealed the judgment.

49 Cal.App.3d 997

FACTS

Cummings Valley, site of the Cummings Basin, is located in Kern County west of Tehachapi Valley and the town of Tehachapi. The valley is about six miles long and two to four miles wide. Other than about 1,720 acres owned by appellant, the land is

Page 922

devoted to private agriculture. From 1951 to 1961, about 2,000 acres were irrigated, but this dropped to about 1,500 acres in the period 1961 to 1967.

The basin is composed predominantly of alluvial deposits about 450 feet thick at the deepest part. The alluvium feathers out in all directions toward the low-permeable rocks which surround the basin. The area within the alluvial boundary of the basin is about 8,500 acres. The main source of underground water is rainwater runoff from the surrounding mountains that flows onto the valley floor and percolates into the alluvium. At the time of trial, no water was imported into the valley.

The land on which appellant's prison facility is located was acquired by appellant in 1930 for a women's prison. The prison was in operation for about 20 years, when it was closed in 1952 because of earthquake damage. It was reopened in 1955 as a branch of the California Institution for Men.

At the time of trial only about 50 of appellant's 1,720 acres was devoted to prison use. For many years prior to 1955, appellant had leased out approximately 700 acres for farming. After 1955, this acreage was used by appellant for a farming program for prisoners; however, except for about 40 acres used as an experimental seed plot, the program was abandoned later. Appellant's pumping of water steadily increased over the years so that by 1970 it was pumping approximately 565 acre-feet per year for use on its land.

The trial court made the following pertinent findings: During each water year from 1949--50 through 1964--65 there was an overdraft on the basin as a result of the beneficial extractions of water in excess of safe yield. The continued overdraft resulted in a deepening of wells, abandonment of wells, an increase in the cost of pumping water, and a contraction of the watered, alluvial areas of the basin, all of which had an adverse effect on the basin as a source of water for beneficial uses and resulted in substantial damage to those that were entitled to extract water.

[49 Cal.App.3d 998] The trial court also found that all extractions of water from the 1949--50 water-year to the commencement of the action had been open, adverse, uninterrupted, and under claim of right; the overdraft was at all times a matter of public knowledge to all parties.

The natural safe yield was found to be 4,090 acre-feet per year, but because the present level of pumping was less that the safe yield, there was no need for an injunction restricting pumping. However, the court found that from the 1964--65 water-year to the time of the trial in 1971, the water levels in the basin remained fairly stable because of a decrease in pumping caused by the filing of the lawsuit and by a reduction in irrigated crops due to a decline in the agricultural economy of the area. The stabilization, however, had not remedied the overdraft which remained substantially as it existed at the end of the 1964--65...

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23 practice notes
  • Application Group, Inc. v. Hunter Group, Inc., No. A071528
    • United States
    • California Court of Appeals
    • 23 February 1998
    ...is also a matter entrusted to the sound discretion of the trial court. (See Tehachapi-Cummings County Water Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 998, 122 Cal.Rptr. 918.) In this case, we conclude the trial court did not abuse its discretion either by finding AGI's claims to be justi......
  • Willis v. L. A. Cnty. Waterworks Dist. No. 40 (In re Antelope Valley Groundwater Cases), F082469
    • United States
    • California Court of Appeals
    • 16 March 2021
    ...fair share of the total amount available based upon his reasonable need." ( Tehachapi-Cummings, supra , 49 Cal.App.3d at p. 1001, 122 Cal.Rptr. 918, italics added.) This correlative overlying right, which is appurtenant to ownership of the overlying land, is superior to claims of other pers......
  • Abatti v. Imperial Irrigation Dist., D072850
    • United States
    • California Court of Appeals
    • 16 July 2020
    ...considering the soil type and crops grown," citing 52 Cal.App.5th 284 Tehachapi-Cummings County Water District v. Armstrong (1975) 49 Cal.App.3d 992, 1001-02, 122 Cal.Rptr. 918 ( Tehachapi ) and Simon Newman Co. v. Sanches (1945) 69 Cal.App.2d 432, 438, 159 P.2d 81 ( Simon Newman ).The supe......
  • Gates v. Superior Court, No. B083893
    • United States
    • California Court of Appeals
    • 15 February 1995
    ...limitations upon" a cause of action as was done by the Tort Claims Act]; Tehachapi-Cummings County Water Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 999, 122 Cal.Rptr. 918 [§ 814 constituted a legislative consent to suit under the authority of art. III, § 5 in injunctive relief cases]; Sta......
  • Request a trial to view additional results
23 cases
  • Application Group, Inc. v. Hunter Group, Inc., No. A071528
    • United States
    • California Court of Appeals
    • 23 February 1998
    ...is also a matter entrusted to the sound discretion of the trial court. (See Tehachapi-Cummings County Water Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 998, 122 Cal.Rptr. 918.) In this case, we conclude the trial court did not abuse its discretion either by finding AGI's claims to be justi......
  • Willis v. L. A. Cnty. Waterworks Dist. No. 40 (In re Antelope Valley Groundwater Cases), F082469
    • United States
    • California Court of Appeals
    • 16 March 2021
    ...fair share of the total amount available based upon his reasonable need." ( Tehachapi-Cummings, supra , 49 Cal.App.3d at p. 1001, 122 Cal.Rptr. 918, italics added.) This correlative overlying right, which is appurtenant to ownership of the overlying land, is superior to claims of other pers......
  • Abatti v. Imperial Irrigation Dist., D072850
    • United States
    • California Court of Appeals
    • 16 July 2020
    ...considering the soil type and crops grown," citing 52 Cal.App.5th 284 Tehachapi-Cummings County Water District v. Armstrong (1975) 49 Cal.App.3d 992, 1001-02, 122 Cal.Rptr. 918 ( Tehachapi ) and Simon Newman Co. v. Sanches (1945) 69 Cal.App.2d 432, 438, 159 P.2d 81 ( Simon Newman ).The supe......
  • Gates v. Superior Court, No. B083893
    • United States
    • California Court of Appeals
    • 15 February 1995
    ...limitations upon" a cause of action as was done by the Tort Claims Act]; Tehachapi-Cummings County Water Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 999, 122 Cal.Rptr. 918 [§ 814 constituted a legislative consent to suit under the authority of art. III, § 5 in injunctive relief cases]; Sta......
  • Request a trial to view additional results

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