United States v. Fallbrook Public Utility Dist.

• Decision Date: 09 December 1952
• Docket Number: No. 1247-SD,1247-SD
• Citation: 109 F. Supp. 28
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. FALLBROOK PUBLIC UTILITY DIST. et al.

109 F. Supp. 28

UNITED STATES v. FALLBROOK PUBLIC UTILITY DIST. et al.

No. 1247-SD

United States District Court S. D. California, S. D.

December 9, 1952.

Raymond deS. Shryock, Commander, U. S. Navy, Chula Vista, Cal., and David W. Agnew, Special Asst. to Atty. Gen., for plaintiff.

W. B. Dennis, Fallbrook, Cal., for defendant Santa Margarita Mutual Water Co.

Edmund G. Brown, Atty. Gen., of State of Cal., by George G. Grover, Deputy Atty. Gen. of the State of Cal., for State of California.

YANKWICH, Chief Judge.

This litigation has been the subject of two prior opinions.¹ The first opinion dealt with the development of the law on riparian rights in California and the contentions of the parties as disclosed by the pleadings. The second one dealt with certain questions of law, which, following a pre-trial order, filed August 25, 1952, the Government and the defendants Fallbrook Public Utilities District (to be herein referred to as Fallbrook) and the Santa Margarita Mutual Water Company (to be referred to as Santa Margarita) and the State of California, as intervenor, briefed and requested the Court's opinion thereon as a means of simplifying the issues and reducing the time for preparation for trial.

Following the filing of the second opinion and the refusal of the Court to grant a continuance requested by Fallbrook, it secured an order from the Court of Appeals for the Ninth Circuit staying the proceedings as to it, until that Court heard an Order to Show Cause which questioned the right of the writer to hold the separate trial as to some defendants at Los Angeles in the Central Division, because the courtroom facilities in the Southern Division at San Diego were occupied with other trials. So the writer, with the acquiescence and approval of Santa Margarita and the State of California, proceeded to try the issues as to this defendant and intervenor who were not made parties to the proceeding before the Court of Appeals.

Due to the extensive pre-trial order and the cooperation of counsel, the presentation of testimony and the arguments were completed in record time. And the writer expresses publicly his thanks to counsel in the case for demonstrating that even a water case can be tried expeditiously in California, if there is cooperation between Court and counsel.

The prior opinions stated in detail the Court's attitude on the major questions of law involved in this case. So this opinion will deal chiefly with facts. A fundamental factor adverted to in the second opinion² is that the Government of the United States, by reason of its acquisition of lands through purchase, after the institution of condemnation proceedings, and through actual letters of cession³, insists on absolute control of the lands so acquired against the exercise of any of the police powers of the State. Nonetheless, by stipulation between the Government and the State of California, dated November 29, 1951, and by the Order of this Court, embodied in the pre-trial order, the rights to the use of water which the Government seeks to determine by this lawsuit are to be measured in accordance with the law of California. The pre-trial order is attached marked Appendix A.

And in assaying the facts, the criteria to be used are those applied by the higher courts of California.

I The Beneficial Test Use

One of the difficulties one encounters in a case of this character is that where a State has developed a body of law on a subject, the tendency is to consider it as a whole. However, the water law of California, so far as it relates to riparian rights, cannot be so considered. For, as the first opinion on the subject and as the decision of the Supreme Court of the United States dealing with the subject indicate⁴, the people of California, in 1928, adopted an amendment to the Constitution of the State which modified the riparian rights as they had been previously declared by the courts of California. So when trying a case of this character, it is important to re-examine and reject every decision ante-dating 1928 which goes counter to the philosophy of water rights embodied in the 1928 amendment. The chief change the amendment brought into the water law of California consisted of engrafting upon every water right and every mode of diversion the doctrine of beneficial use.

In one of the first cases dealing with the effect of the amendment, the Supreme Court of California summed up its effect in this language:

"The limitations and prohibitions of the constitutional amendment now apply to every water right and every method of diversion. Epitomized, the amendment declares:

"1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served.

"2. Such right does not extend to the waste of water.

"3. Such right does not extend to unreasonable use or unreasonable method * * * of diversion of water.

"4. Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution.

"The foregoing mandates are plain, they are positive, and admit of no exception. They apply to the use of all water, under whatever right the use may be enjoyed. The problem is to apply these rules in the varying circumstances of cases as they arise."⁵

Similar declarations have been made repeatedly since.⁶ And the doctrine has been applied to an underground stream.⁷

Subject to this limitation, the riparian owner is entitled to the flow of the stream, as limited by the correlative rights of other owners. The riparian owner may acquire prescriptive rights in addition to his riparian rights.⁸

In one of the cases already referred to, the Supreme Court of California, after analyzing the cases decided since the 1928 amendment, has stated the scope of its limitation on riparian rights and the rights to surplus and waste waters in this manner:

"In the cases referred to it was established that by the changes in the law the right to use the waters of rivers and streams of the state has been limited to a reasonable beneficial use; that the riparian owner has a prior and paramount right to this use and if necessary is entitled to the full natural flow of the stream or its equivalent undiminished in quantity and unimpaired in quality. The riparian owner is safeguarded in this right by the constitutional amendment. But the amendment also provides that `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 * * *'. This provision clearly means that when the law has guaranteed to the riparian owner the use of the waters of the stream to the full extent to which he may put the same for all present and prospective useful and beneficial purposes, and has made available to him the means of protecting the rights so guaranteed, he has received the full measure of benefit and protection to which he is entitled, and can claim no more.

"There are waters in the rivers and streams of the state to which the riparian right first attaches. The rights of other lawful users on the stream also rightfully attach. In addition there are in many of the rivers and streams of the state great volumes of water which pass on unused to the sea or to an inland drainage basin. In a real sense this excess water is a great natural resource available for the benefit of this and future generations, as the occasion for its use may arise. These excess waters constitute the public waters of the state to be used, regulated and controlled by the state or under its direction."⁹

In the case involving the former owners of the Ranch which the Government acquired by purchase, the nature of the usufructory rights of the riparian owners is stated in this manner:

"The riparian does not `own' the water of a stream, he `owns' a usufructory right—the right of reasonable use of the water on his riparian land when he needs it. Gould v. Eaton, 117 Cal. 539, 49 P. 577, 38 L.R.A. 181. If one riparian has no present need for water the others may use it all. The lower riparian cannot secure an injunction against the upper riparian unless the upper owner is using an excessive portion of the waters of the stream resulting in actual damage to the lower proprietor. * * * The same principles apply to underground waters. * * * Moreover, it is also well established that the underground and surface portions of the stream constitute one common supply."¹⁰

Santa Margarita has not diverted any water. So we need not concern ourselves with the academic problem whether a lower riparian owner is entitled to enjoin an upper appropriator.¹¹ Rather do we direct our attention to the problem of what the Government by riparian ownership and adverse use has shown itself to be entitled to under the cases just announced which, summed up, state the law to be that Santa Margarita as an appropriator is entitled only to any surplus or waste waters which exist in the stream. If there is no surplus water, after the Government is allowed the full measure of its riparian rights, then any diversion by Santa Margarita under its appropriation would, of necessity, damage the Government. For it is quite evident from the experience of the failure of the water system at the ammunition depot and the intrusion of salt water into some of the wells, that an additional diversion would harm the Government. And, while it is the rule that the injunctive process is not used to allay one's fears, the Government is entitled, at least, to a declaration that diversion would result in injury.

II The Character of the Santa Margarita and Its Basin

In the pre-trial order the character of the Santa Margarita River System and its drainage areas was agreed to, and the following facts are gathered from it.

A. The Santa Margarita River System and Its Drainage Area

The Santa Margarita is a non-navigable intermittent stream having a drainage area of 740 square...