Temescal Water Co. v. Department of Public Works

• Court: California Supreme Court
• Writing for the Court: EDMONDS; In a concurring opinion; SHENK, Acting C. J., CARTER, TRAYNOR, SCHAUER, and SPENCE, JJ., and BRAY
• Citation: Temescal Water Co. v. Department of Public Works, 280 P.2d 1, 44 Cal.2d 90 (Cal. 1955)
• Decision Date: 15 February 1955
• Parties: TEMESCAL WATER COMPANY, a corporation; and Elsinore Valley Municipal Water District, a municipal water district, Petitioners and Appellants, v. DEPARTMENT OF PUBLIC WORKS: Frank B. Durkee, Director of Department of Public Works; and A. D. Edmonston, State Engineer, Respondents, Riverside County Flood Control and Water Conservation District, a body politic and corporate, and a political subdivision of the State of California, Intervener and Respondent. L. A. 23083.

Page 1

280 P.2d 1

44 Cal.2d 90

TEMESCAL WATER COMPANY, a corporation; and Elsinore Valley Municipal Water District, a municipal water district, Petitioners and Appellants, v. DEPARTMENT OF PUBLIC WORKS: Frank B. Durkee, Director of Department of Public Works; and A. D. Edmonston, State Engineer, Respondents Riverside County Flood Control and Water Conservation District, a body politic and corporate, and a political subdivision of the State of California, Intervener and Respondent.

L. A. 23083.

Supreme Court of California, In Bank.

Feb. 15, 1955.

Clayson, Stark & Rothrock and Donald D. Stark, Corona, for appellants.

Robert E. Reed, Henry Holsinger, Mark C. Nosler, and Gavin M. Craig, Sacramento, for respondents.

Ray T. Sullivan, Jr., County Counsel, Riverside, and Leo A. Beegan, Dep. County Counsel, Sacramento, for intervener and respondent.

EDMONDS, Justice.

The Division of Water Resources of the Department of Public Works issued a permit authorizing the Riverside County Flood Control and Water Conservation District to appropriate annually a quantity of water from the Bautista Creek, a tributary of the San Jacinto River. By this proceeding in mandamus, Temescal Water Company and the Elsinore Valley Municipal Water District are endeavoring to compel the division to withdraw and cancel the permit and to deny the district's application. The appeal is from a judgment in favor of the conservation district and the department which followed an order sustaining, without leave to amend, demurrers to the petition for writ of mandate.

According to the petition, Temescal is a mutual water company supplying water for domestic use in the City of Corona and for irrigation in the city and its vicinity. To provide for its shareholders, the company has acquired rights in the flow of the San Jacinto River. These rights, based in part upon long appropriative use and also upon a permit from the Department of Public Works, allow the company to appropriate a specified quantity of water by direct diversion and an additional amount by storage. Pursuant to these rights, Temescal has transported substantial quantities of water to Corona and vicinity, where it has been placed to a beneficial use.

The Elsinore Valley Municipal Water District, it was alleged, includes within its boundaries the City of Elsinore, Lake Elsinore and the valley surrounding the lake. Except for a negligible amount of local runoff, the San Jacinto River with its tributaries is the sole source of water to replenish the lake and the underground water supply of the valley. A lowering in the water level of the lake increases its salinity, causing the death of fish and much offensive odor. At the present time, the entire lake is dry and its bed unsightly. Property values and the general prosperity of the municipal district depend upon an adequate supply of fresh water in the lake and the maintenance of the underground water levels in the valley.

Upon application by the conservation district, the petition continued, the Division of Water Resources issued a permit authorizing the district to appropriate 'not to exceed 3,070 acre feet of water per annum from the waters of' Bautista Creek. There is no unappropriated water available in the river and the creek to supply the district pursuant to its application. On the contrary, at the present time and for many years past there has not been sufficient water in the river system to satisfy the requirements of the owners of vested riparian and appropriative rights.

The conservation district, as intervener, joined with the other respondents in demurring to the petition upon the ground that no cause of action was stated. The demurrers were sustained and an order entered discharging the alternative writ and denying a peremptory one.

As grounds for reversal of the judgment which followed that order, the water company and the municipal district contend that the petition states facts entitling them to a writ of mandate under section 1085 of the Code of Civil Procedure. Their position is that the Department of Public Works, under section 1375 of the Water Code, ¹ is specifically enjoined to deny an application for a permit to appropriate water when no unappropriated water is available to the applicant. As they read section 1375, the existence of unappropriated water is a jurisdictional fact which cannot be finally determined by the division, but upon which they are entitled to a trial de novo. Assuming that the facts alleged in the petition are insufficient to state a cause of action, the argument continues, the trial court abused its discretion when it sustained the demurrers without leave to amend.

The Department of Public Works concedes that a decision by it upon an application for a permit to appropriate water is subject to judicial review. It agrees, also, that the proper proceeding for that purpose is by way of writ of mandate. However, according to the department, the scope of review should be the qualified one established by section 1094.5 of the Code of Civil Procedure and the decisions construing that statute. The petition of Temescal is attacked as not stating facts sufficient to justify the relief demanded. More particularly, it is claimed, the allegations of the petition clearly show that the petitioners are entitled to no relief, and the trial judge did not abuse his discretion in denying leave to amend.

Authority for the Division of Water Resources of the Department of Public Works to administer the appropriation and use of unappropriated water, now included in Divisions 1 and 2 of the Water Code, stems from the Water Commission Act of 1913. Stats.1913, c. 586, p. 1012. The main purpose of that legislation was to provide an orderly method for the appropriation of such waters, Bloss v. Rahilly, 16 Cal.2d 70, 75, 104 P.2d 1049, and substantial changes were made in the procedure by which an appropriation was initiated.

The statute was construed in Tulare Water Co. v. State Water Commission, 187 Cal. 533, 202 P. 874. There, the company's application for a permit to appropriate water from the flow of the Kern River was denied without a hearing, and the company sought writs of mdandate and certiorari to compel the commission to issue it. General demurrers to the petitions were sustained without leave to amend.

Upon appeal, the company contended that, when an application in due form was filed, it became the duty of the commission, as a ministerial act, to issue a permit, and mandate was the proper remedy to compel it to do so. In the alternative, it was suggested that if the commission considered an application and determined rights as a judicial function, it had refused to exercise its authority and the refusal to do so was reviewable by certiorari.

The court assumed, on the basis of the pleadings, a full compliance with the prescribed conditions for obtaining a permit and that there was unappropriated water in the river to supply the petitioner's demands. It then pointed out the mandatory nature of the language of the sections of the act governing the issuance of a permit. After quoting in part sections 17 and 15 of the statute, ² the court said:

'If any discretion was vested in the Commission, or any matter submitted for judicial consideration, it was to determine whether there was any unappropriated water in the Kern river at that time subject to this proposed appropriation.

'The Commission surely does not possess and could not be invested with power to arbitrarily deny an application made in conformity to the law for the appropriation of water that was subject to appropriation.

'The purpose of the act is clearly to permit any person or corporation desiring to make any of the enumerated beneficial uses of waters of the state, not otherwise utilized, to avail itself of this right of appropriation.

'Under the law in force prior to the adoption of this act (Civ.Code, §§ 1410-1422) no permission was required for the appropriation of waters of the state. All that was required to create a preferential right to such water was to actually appropriate it to some authorized beneficial use, or to make a water filing to be followed with due diligence by an actual user.

'The obvious aim of the Water Commission Act was not to abolish, but to regulate and administer, this privilege.

'The positive right to such permit is granted by section 17 of the act to any person who makes application as provided by the act and the rules of the Commission.' 187 Cal. at page 536, 202 P. at page 876.

The court then considered the nature of the commission's function in determining whether the water claimed was subject to appropriation. It pointed out that by section 10 of the act, ³ the commission was authorized to investigate the water source to which a claim was made, to take testimony with regard to the rights existing in it, and to "ascertain whether or not such water * * * is appropriated under the laws of this state." The court said:

'While it appears from the provisions above quoted that the act is intended to authorize an investigation, and the exercise of some degree of discretion by the Water Commission as to the sufficiency of the application, and as to the existence of water subject to appropriation, no formal hearing is prescribed, and no authority granted to judicially determine the fact as to unappropriated water, or to adjudicate conflicting claims that might exist thereto. Even if a hearing could be required, the Commission is without jurisdiction to finally determine the existence or nonexistence of water subject to appropriation, and in such a case its denial of an application, if held to be a judicial determination of the right, would leave the petitioner without remedy, as no appeal is provided for, and certiorari would only go to the regularity of the proceeding, and not to the merits of the ruling.

'In view of the several other powers and duties devolving upon the Water Commission under this...