Waters of Long Valley Creek System within Lassen, Sierra and Plumas Counties, Matter of
| Decision Date | 22 August 1978 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the Determination of the Rights of Various Claimants to the WATERS OF LONG VALLEY CREEK SYSTEM WITHIN LASSEN, SIERRA AND PLUMAS COUNTIES, California. CALIFORNIA STATE WATER RESOURCES BOARD, Respondent, v. Donald E. RAMELLI, Appellant. Civ. 16344. |
Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz, Stephen A. Kronick, Sacramento, for appellant.
Evelle J. Younger, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Roderick E. Walston, Richard C. Jacobs, Deputy Attys. Gen., for respondent.
Donald Ramelli appeals from a judgment of the Lassen County Superior Court upholding (with certain exceptions not here significant) the order of determination of the State Water Resources Control Board (Board) determining water rights in the Long Valley Creek Stream System.
The Long Valley Stream System, which contains a 465 square mile watershed, "lies astride the California-Nevada border starting at its uppermost extremity about eight miles northwest of Reno, Nevada, and extending northwesterly about 45 miles in length to the East end of Honey Lake near Herlong, California." Long Valley Creek and its main tributaries, Purdy Creek and Balls Creek, originate in the melting snow of the Sierra Nevadas in the vicinity of Babbit Peak. From there they flow into "a semi-arid and desert portion of the State of California." In most years, there is a surplus of water early in the spring, with the flow receding rapidly when the snow has melted; this may occur as early as April or as late as June. After the snow-melt runoff is gone, there is only enough water to irrigate a small portion of the total irrigable land.
Ramelli owns the land upon which Balls Creek originates. For the past approximately 60 years he and his predecessors have irrigated only 89 acres thereof. However, he claims prospective riparian rights in the creek for an additional 2884 riparian acres. Presently only an estimated 4130 acres are irrigated in the entire Long Valley Creek watershed area. Significantly, Balls Creek contributes to Long Valley Creek the largest flow of any of its tributaries. Thus recognition of Ramelli's claim will cast an ominous shadow of uncertainty over the rights of every other downstream user in the watershed.
Because of the limited water supply, there has been extensive litigation between and among the various water claimants in the area since at least 1883. Finally, on April 4, 1966, nine claimants filed a petition with the Board for a statutory adjudication of all water rights in the Long Valley Stream System (pursuant to Wat.Code, § 2500 et seq.). The staff of the Board conducted a preliminary investigation and recommended in favor of the petition, which the Board then granted on September 5, 1968. Thereafter the Board prepared and published a notice of the proceedings (Wat.Code, §§ 2526, 2527), and each claimant to the waters of the stream system notified the Board of his intention to file a claim. (Wat.Code, § 2528.) As required by Water Code section 2550, the Board then conducted an extensive investigation. The results thereof, in the form of a report, were published in June 1971.
Water Code section 2575 requires that after filing of the Board's report, each person who has notified the Board of his intention to file a claim must be advised that the claim, and proof in support thereof, must be formally presented. The failure to submit such claim and proof operates as a bar to a later claim and as a forfeiture of all water claims on the stream system. (Wat.Code, § 2774.) If more than 25 claims are presented, the Board is required to prepare abstracts thereof and file them for public inspection. (Wat.Code, §§ 2625-2629.) Any claimant who then wishes to contest any other claim may file a notice of contest. Two hundred thirty-four claims and proofs, and forty-two contests thereto, were filed and heard by the Board.
Finally, after consideration of the claims, proofs and contests, the Board made and caused "to be entered of record in its office an order determining and establishing the several rights to the water of the stream system." (Wat.Code, § 2700.) As required by Water Code section 2750, the order was then filed (together with the evidence considered by the Board) with the clerk of the Superior Court of Lassen County. (Wat.Code, § 2750.) The Board obtained a court order dated February 25, 1975 setting a time for hearing, furnished each of the claimants with a copy thereof, and published it. (Wat.Code, §§ 2751-2756.)
The order of determination awarded Ramelli various amounts of water for the 89 acres as to which riparian rights were currently being exercised; it denied any water rights pertaining to the remaining 2884 riparian acres. Moreover, the amounts of water granted Ramelli were different from those previously adjudicated to him in an earlier action between Ramelli and two other claimants to the waters of Balls Creek. 1
Ramelli unsuccessfully excepted to the order of determination. He first asserted that it should recognize his unexercised riparian rights in the 2884 acres on the ground that riparian rights "are vested in the owner of riparian lands as part and parcel of such lands" and cannot be "lost by non-use, but are available to be exercised whenever the owner wishes to do so for reasonable beneficial uses on the riparian land." As an adjunct to that contention, he asserted that his unexercised riparian rights, once recognized were entitled to the same priority in the order of determination as all riparian rights currently being exercised; also that his unexercised riparian rights may not be quantified, since by nature a riparian right accrues to All reasonable and beneficial uses of the property rather than only to current uses or to specific potential uses. Finally, he contended that the judgment in the prior litigation between himself, Edith Evans, and the predecessor to Green Gulch Ranch, Inc., was res judicata as to his water rights on Balls Creek. These same contentions are now raised on appeal, after the trial court entered a decree consistent with the order of determination.
We sustain Ramelli's first contention. The Board and the trial court erred in limiting his riparian rights to present use only and failing to recognize his right of prospective, albeit unexercised, use.
The right of prospective use fundamentally distinguishes an appropriator from a riparian. The latter's water right does not depend in any way upon user. (Hargrave v. Cook (1895) 108 Cal. 72, 77, 41 P. 18, 19.) Case after case prior to 1928 affirmed and reaffirmed this right of prospective use on the part of a riparian owner. (Parker v. Swett (1922) 188 Cal. 474, 205 P. 1065; Fresno Canal, etc. Co. v. People's Ditch Co. (1917) 174 Cal. 441, 163 P. 497; Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 98 P. 260; Duckworth v. Watsonville, etc. Co. (1907) 150 Cal. 520, 89 P. 338; Heilbron v. Land and Water Co. (1889) 80 Cal. 189, 22 P. 62.)
In Herminghaus v. Southern California Edison Co. (1926) 200 Cal. 81, 252 P. 607, the Supreme Court upheld an injunction against appropriation of water from the upper San Joaquin River on the ground that the lower "riparian owners have a right to have the stream flow past their land in its usual course" (200 Cal. at p. 112, 252 P. at p. 620), even though 99 percent of that flow was wasted. This decision brought about the addition in 1928 of article XIV, section 3 (now art. X, § 2), to the California Constitution, which states in its entirety:
The key phrase of this constitutional provision, insofar as pertinent here, is: "(r)iparian 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.) This language makes...
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