MOORE ET AL. v. CALIFORNIA OREGON POWER CO.
Plaintiffs by this action originally sought both an injunction and damages for an alleged violation of riparian rights. The prayer for an injunction was abandoned in view of the public use to which the defendant puts the water of the river in question and the issues as to damages were submitted to a jury which returned a verdict in plaintiffs' favor for $7,500. Defendant, having moved for a nonsuit and for a directed verdict and these motions having been denied, moved for a judgment notwithstanding the verdict. This motion was granted and judgment was entered in favor of the defendant. Plaintiffs have appealed from the judgment.
The controversy arises from the acts of the defendant public utility corporation in the operation of a power plant on the Klamath River in which said defendant claims the right to impound, regulate and control the flow of the river for the generation of electric energy for sale to the public.
The Klamath River has its principal source in Klamath Lake in Oregon, which is fed by the Sprague and Williamson Rivers. In their natural state the rivers of this region are heavily influenced by winter rains and melting snows and the natural summer flow is much lower than in the winter and spring. Defendant maintains a storage dam at the outlet of Upper Klamath Lake, known as the Link River Dam, which was completed in 1921. This dam makes of Upper Klamath Lake a seasonal storage reservoir, accumulating the heavy run–off of the fall, winter and spring for release during the dry months of the summer. The United States Government exercises certain superior rights of control over the amount of water permitted to be drawn from the lake by the defendant, to protect irrigation requirements of government projects dependent on the lake for their water. Heavy irrigation requirements occur from about May to September of each year, although the demand for water may arise earlier and be subject to change in exceptionally dry seasons.
Among other of its works, defendant operates a dam and generating plant at a place known as Copco in Siskiyou County, California, some miles above plaintiffs' lands. This project was initiated about 1909 or 1911 by defendant's predecessors. Notices of appropriation were posted and recorded in each of those years. A dam was built across the river to a height of 113 feet and the first unit of the power plant known as Copco No. 1 was installed in 1917 and placed in operation in 1918. In 1922 the dam was raised to a height of 126 feet and an additional unit was installed, making two units at Copco No. 1 with a total capacity of 25,000 kilowatts. The plant here has existed and been in operation without change since 1922. In 1925 a plant known as Copco No. 2 was installed downstream from Copco No. 1 for the purpose of utilizing the water after it passes through the No. 1 plant. Copco No. 2 does not detain or impound water or otherwise affect the flow of the river.
The reservoir at the Copco plant has a total storage capacity of about 80,000 acre feet. The plant is of the high–head type. To obtain the necessary head for efficient operation of the generators, the upper five feet of water only is normally used, the outlets being located near the top of the dam and the upper 5,000 feet being drawn upon.
A large part of northern California is supplied with electric energy through defendant's facilities. When the works at Copco were constructed it was a widely–publicised project and a matter of common notoriety throughout the locality.
Upon the completion of the dam in 1917 the entire flow of the river was cut off for a period of about three weeks while the reservoir was being filled. Subsequently on numerous occasions in further construction, and in repair and maintenance the river has been completely shut off. In the production of energy, defendant's method of operation has continuously been to impound and release water according to the extent of the demands of its customers upon its facilities.
Plaintiffs originally took possession of the property described in the complaint in 1927 under a contract of sale. A deed was delivered to them after the commencement of this action in 1934, and in 1938, before the trial, they disposed of the property. The entire property is a ranch of about 400 acres, of which about 240 acres are riparian to the Klamath River. Prior to 1931 plaintiffs, during the period of their occupancy, had been using the water for beneficial purposes, irrigating about 70 acres of land and growing alfalfa and a garden thereon. They took water from the river at a point about 1 1/2 miles upstream from their land, by means of a ditch, which is about 4 feet wide and 2 1/2 feet deep and of uniform size from its head to plaintiffs' land. Copco No. 1 dam is located about 8 1/2 miles upstream from the head of plaintiffs' ditch.
The complaint points exclusively to defendant's Copco plant as the objectionable operation. Certain pertinent parts of the complaint are to the following effect: That said defendant, among other of its works, owns, operates and maintains at Copco, California, a hydro–electric power and generating plant on the Klamath River some miles northerly from plaintiffs' land and at that place operates and maintains its power–generating plant and has there constructed and erected and maintains a concrete dam across the natural channel and course of said Klamath River for the purpose of impounding and confining the waters of said river to be used and employed in the generation and manufacture of electrical power and current; that by means of said dam the defendant can and does, for the purposes aforesaid, regulate and control the natural flow of the waters of said river and more particularly during the irrigating season thereof which extends from the month of May to the following September or later, depending upon seasonal conditions; that during said irrigating season the waters and the natural flow of said river is lower than at other seasons of the year; that by reason of the impounding and confining of the waters of said stream and the regulation and control thereof, the said defendant by its acts frequently reduces the flow of said stream to a minimum during said irrigating season and thereby and by reason thereof deprives the plaintiffs from diverting any of the waters of said river through their ditches for the purpose of irrigating said land; that the impounding and confinement and such harnessing, regulation and control of the natural flow of the waters of said stream is and ever has been unreasonable and in violation of plaintiffs' natural rights to the natural flow of the waters of said stream; that as riparian owners of said tract of land the plaintiffs have and of right ought to have the free, natural and unobstructed flow of the waters of said river upon and adjoining their premises; that the climate at the location of said lands is very dry and the annual rainfall is very slight and said lands unless irrigated otherwise than by natural rainfall are unfit for cultivation and pasturage; that the soil of said land is fertile and by irrigation can be rendered very productive; that during the fall, winter and spring months of each year there is a large increase in the volume of water flowing down the Klamath River other than that which ordinarily flows therein during other portions of the year; that the increased flow of water which comes down said river at such times has, from time immemorial, except as the waters of said river have been wrongfully diverted by defendant, caused said river to overflow its banks and to cover with such overflow an extended area of said land; that the waters causing and constituting such overflow have each year brought down from the mountains and valleys, through which said river flows, quantities of material which it has by said overflow deposited on said land; that the material so brought down by the floods to said land has fertilized and enriched said lands and has caused the said lands annually to yield increased crops of grass and cereals and has largely increased the value of said lands; that such annual overflow and flooding of said lands has also wet and irrigated said lands so that they would without further irrigation produce and have produced large and valuable crops of grass and cereals and do maintain and have maintained abundant pasturage and feed for stock; that without such flood and overflow said lands unless otherwise artificially irrigated would have produced little or no grass, feed or other crops; that the increase in the volume of water so flowing down said river causes a greatly increased percolation of said waters to the bank of said river into and through all of said lands belonging to plaintiffs and below the surface or soil thereof and has thereby so irrigated said lands that they would without further irrigation produce and have produced large and valuable crops of grass, cereals and pasturage which would not otherwise have been produced on said lands; that the plaintiffs, their grantors and predecessors in interest under their rights as riparian proprietors in said Klamath River and by virtue of their ownership of said lands bordering on the channel of said river have for more than twenty years last past used and are now using the waters of said river, except as such use has been wrongfully interfered with by said defendants as hereinabove alleged for watering of stock, domestic and agricultural purposes for which an owner of land bordering on a stream has a right to use the waters thereof; that any rights of the defendant to the waters of said stream are subsequent to the rights of plaintiffs and their predecessors in interest as riparian owners to the waters of said river, and that the said power plant and dam were built and constructed by defendant long after plaintiffs' said premises were brought under cultivation and irrigated by the waters of said river by plaintiffs and their predecessors in interest; that the only source of water which plaintiffs have for the irrigation of their lands is from the aforesaid Klamath River to which plaintiffs' said tract of land is appurtenant and riparian; that for many years last past the plaintiffs have been unable to profitably cultivate and irrigate their said lands by reason of the confinement and control of the waters of the said Klamath River by said defendant which resulted in a deprivation to plaintiffs of said waters for irrigation purposes and in denial of plaintiffs' said rights as riparian owners; that the same has greatly damaged plaintiffs and has rendered their said lands worthless for agricultural purposes for which the same are principally valuable and to which purpose they have been devoted since on or prior to the year 1877; that by reason of the premises and the acts of the defendant the said lands have been rendered dry and sterile and that the value thereof has been greatly and irreparably reduced in this, that with water available for the irrigation thereof for the raising of crops of hay and grain and the furnishing of pasturage the value of the same is at least six times greater than the value of the lands deprived of their riparian water rights and of the water for irrigation thereof; that by reason of the manipulation of the waters of said Klamath River by said defendant the plaintiffs are being deprived and will be deprived of the natural fertilization of their said lands by the flood waters of said Klamath River and the natural irrigation of said lands accomplished by the natural flow of the waters of said Klamath River and of the natural irrigation of said lands resulting from the seepage and percolation of said waters through the bank of said river into and through said lands below the surface of the soil thereof which would be the natural course without interference by defendant; that in case the defendant continues to impound, confine, harness, regulate, control and manipulate the waters of said Klamath River plaintiffs will be deprived of their rights to have the natural flow of the waters of said Klamath River through, over, across, by, upon and past their said riparian lands and will be deprived of the natural irrigation of their said lands by said water and by reason thereof plaintiffs will suffer great and irreparable damage and injury.
It appears from the briefs and from the record that the principal and probably the sole ground upon which the lower court granted the motion and rendered its judgment, notwithstanding the verdict, is that the evidence shows without substantial conflict that the defendant obtained and owns a prescriptive right to impound, detain, regulate and control the entire flow of the river, if necessary, in operating its plant for the purpose of generating electric energy for sale to the public in accordance with such demands as its customers may make upon its facilities, which right is paramount to plaintiffs' rights as lower riparian owners. This defense was properly pleaded by the defendant. On settled principles, if there was evidence of sufficient substantiality to support the verdict in favor of the plaintiffs, it must be upheld; otherwise the judgment appealed from must stand.
There is no controversy between the parties in respect to the period of limitation of actions which applies, the plaintiffs asserting and the defendant admitting that the superior right claimed by it depends upon its having taken the water for a continuous period of five years under conditions sufficient to fulfill all of the requirements of title by prescription. Defendant's claim is that the use ripened into an adverse right in 1927, its control of the river having been exercised continuously, adversely and under a claim of right since 1922.
Appellants admit that they have lost the right to the nighttime, Sunday and holiday use of the water, but contend that until 1931 there was no invasion of their right to the daytime use of the water in sufficient quantity to meet their needs and that their cause of action did not arise until that year; that having brought their action in 1933 they are in time. Their position in this respect is summed up in the following statement quoted from their brief:
“In the first place, the evidence establishes beyond quibble that, although defendant constructed all of its dams but one prior to five years before the commencement of this action, there was an ample supply of water flowing in the river to meet plaintiffs' needs before 1931, but after 1931 there has been no water available to plaintiffs. The injury to plaintiffs or the taking of the property occurred in 1931, and plaintiffs, not having any cause of action until the taking or the injury, their cause of action did not accrue until 1931; and they commenced their action in 1933.”
This is a wide departure from the allegations in the complaint, heretofore referred to, wherein the substance and effect of plaintiffs' charge was that the invasion of their rights consisted in the facts that defendant had constructed and was maintaining at Copco a dam and hydro–electric generating plant whereby it could and did, for the purpose of generation and manufacture of electrical power and current, impound, confine, regulate and control the waters of the river, both winter and summer, in violation of plaintiffs' natural rights to the free, natural and unobstructed flow thereof, as they and their predecessors in interest had enjoyed and used them for more than twenty years last past, except as wrongfully interfered with by defendants, for watering of stock and domestic and agricultural purposes. But passing any consideration of the admissions of the pleading as to the nature and character of the defendant's claim and use of the water, we shall examine appellants' contentions as to the effect of the evidence apart from the admissions and the application of the law thereto.
The gist of appellants' claim is that since they personally were accustomed to and desired only to do their irrigating during certain times of the day when between 1927 and 1931 they had found sufficient water flowing in the river to satisfy this need, they were not injured until there was in 1931 an actual, physical interruption of this limited time and method of use. The argument proceeds upon the general principle that in order to establish a right by prescription, the acts by which it is sought to establish it must operate as an invasion of the right of the party against whom it is set up. The principle is well enough established, but the facts in the case at bar are such that the rule aids the respondent rather than appellants. Here the controversy is between a lower owner of riparian lands who did not possess the lands until long after the acts of the defendant in impounding and controlling the flow of the entire stream commenced, and an upper appropriator adversely claiming the right to harness and regulate the entire flow at will for the production and sale of power and to engage extensively in a large and permanent public enterprise. It is not a dispute between riparian owners as such. Whether there has been an invasion of rights giving rise to a cause of action must depend upon the nature, character and extent of the use and adverse rights asserted. The evidence shows, without contradiction, that since 1922 when the Copco plant was put in operation the right claimed and the use made by the defendant was to detain, regulate and artificially control the entire flow of the river as was expedient in the operation of its existing facilities for the production of power for sale to the public as a public utility serving a large territory to the extent of the demands upon it, including the myriad of acts inherent in the nature of such an operation. The assertion of such a right and the carrying on of such an enterprise is an invasion of the rights of private lower riparian owners from its inception. Taking into consideration the nature of the country, the stream and the climate, notwithstanding the waters would be ultimately all returned to the stream bed below defendant's plant and above plaintiffs' diversion ditch, the very nature of the undertaking is such that the river would not flow as it was wont to do in a state of nature. As was said in Herminghaus v. Southern California Edison Co., 200 Cal. 81, at page 110, 252 P. 607 at page 619: “* * * as to said waters as a whole and to the extent of their retention in said reservoirs, their ultimate return to the river would depend, not at all upon the claims and asserted rights of lower riparian owners to the usual, natural, and ordinary flow of said waters, but altogether upon the will and convenience of the defendants in their proposed utilization of said waters for power production.”
Passing upon one of the claims of the defendants in that case that their right was solely a riparian one and distinguishing those cases which hold that riparian owners as such have a right to use waters for the production of power under certain circumstances and those which deal with a mere temporary detention of water by dams during periods of scant flow, the court said, 200 Cal. at page 111, 252 P. at page 619: “Such cases have no bearing upon such an extensive, prolonged, and indefinite storage, withdrawal, and sequestration of the waters which form the usual and ordinary flow of such a stream as the San Joaquin river to the inevitable detriment of not one but all of the lower riparian owners and users of such waters.”
We are convinced that the nature of the right asserted and the use made of the waters of the Klamath River by the defendant here is of the same kind as was involved in the Herminghaus case and that it is well established that such a use is an appropriative one and constitutes an actionable invasion of the riparian rights of the lower owner in a case of the sort here presented. Seneca Consol. Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 287 P. 93, 70 A.L.R. 210; Colorado Power Co. v. Pacific Gas & Electric Co., 218 Cal. 559, 24 P.2d 495.
Appellants argue very earnestly that the case of City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475, supports their position. Also cited are Anaheim Water Co. v. Semi–Tropic Water Co., 64 Cal. 185, 30 P. 623; Faulkner v. Rondoni, 104 Cal. 140, 37 P. 883; Pabst v. Finmand, 190 Cal. 124, 211 P. 11; Scott v. Fruit Growers' Supply Co., 202 Cal. 47, 258 P. 1095, and certain cases from other jurisdictions. We do not find these cases in point. City of San Diego v. Cuyamaca Water Co., involved certain rights which were governmental in character. Among other things which distinguish it from the case at bar is the principle there involved that no prescriptive right may be gained by adverse use against a governmental body. The other California cases involved the relative rights of riparian owners. Pabst v. Finmand, supra [190 Cal. 124, 211 P. 14], expressly recognizes the doctrine applicable here in the following language: “As to a nonriparian owner the riparian owner is under no duty to share the waters * * * and the slightest use by such nonriparian owner diminishes to some extent the flow of the stream. Obviously, there is no question of reasonable use in the sense in which that term is applied to the rights of respective riparian owners, since a riparian owner, as against a nonriparian owner, is entitled to the full flow of the stream without the slightest diminution. The initial step in the diversion of the water by the nonriparian owner is therefore an invasion of the right of the lower riparian owner, and every subsequent diversion is a further invasion of that right.”
It is unnecessary to specifically analyze the other cases mentioned.
It is asserted by appellants that since under the 1928 amendment to section 3, article XIV of the Constitution, and cases construing the effect thereof, they had not right to divert any more water than could be put to present beneficial uses on their property, they had no cause of action until they were deprived of water for which they had and were making an actual present beneficial use, which they say did not occur until 1931. The contention is not sound. While the riparian owner may not enjoin the use by an appropriator of excess waters, he may still lose his rights unless he acts to have them declared before an adverse use ripens into a right. In Peabody v. City of Vallejo, 2 Cal.2d 351, at page 374, 40 P.2d 486, at page 494 the court said: “When there is no substantial infringement of the right, that is, when there is no material diminution of the supply by reason of the exercise of the subsequent right, the owner is entitled to a judgment declaring his preferential and paramount right and enjoining the assertion of an adverse use which might otherwise ripen into a prescriptive right. * * * If the exercise of the appropriative right cause a substantial diminution of the supply the owner is entitled to compensation for the resulting damage to his lands. But the technical infringement of the right is not actionable * * * except to establish priority.” See, also, Tulare Irr. Dist. v. Lindsay–Strathmore Irr. Dist., 3 Cal.2d 489, 45 P.2d 972.
Great reliance is placed by appellants upon the principle that a seasonal or periodical use cannot afford a basis for a prescriptive right to take water continuously, as applied in Northern California Power Co. v. Flood, 186 Cal. 301, 199 P. 315, and Bazet v. Nugget Bar Placers, Inc., 211 Cal. 607, 296 P. 616. The rule referred to has no application here. The distinction is that in the case of the diversion of measured quantities of water for irrigation or mining uses at fixed and determinable intervals, there is no invasion or threatened invasion of the rights of lower riparian owners to quantities beyond those used nor of a use at other periods of time than those appropriated, whereas in such an extensive, prolonged and indefinite withdrawal of waters at all seasons from their accustomed course and flow as is here involved, for nonriparian use, there is inherently present from the time of the initiation of such a claim and use not only the actual harnessing, regulation and control of the entire stream at all times, but a continuing threat to do so, dependent only upon the will of the appropriator and the demands of the public upon the facilities of the utility for the production of so much power as they may require for all of their uses. Naturally and inevitably in such an operation, if the demand for power increase, larger amounts of water must be released from storage if required, followed by periods of accumulation sufficient to build up the supply again and if there be seasons of scant flow it must occur that there are corresponding periods when no water may spill over the dam and all that may flow on down in the natural channel is that which is passed through the generating machinery at the will of the operator. That water reached appellants' ditch during the period of their possession and ownership prior to the shortage of 1931 was but an incident which in no way limited the broad nature and character of use and control claimed and exercised by defendant from the time of completion of its Copco dam to its present height or imposed upon it any duty or obligation to supply appellants' needs.
We have not overlooked appellants' contention that this appeal involves merely a case of conflicting evidence. This contention might have been sound had the case depended upon whether the quantity of water reaching appellants' ditch was regular or irregular in its fluctuations. However, we think it does not turn upon that point but upon the extensive nature and character of the defendant's claim and exercise of the right to control and regulate at will the entire flow of the stream at all times for the purposes of power production and sale, which, as we have stated, constituted an invasion of the riparian rights of the lower owners from the beginning.
The contention that there is substantial evidence that the dam at Keno, above the Copco plant and dam, was responsible for plaintiffs' alleged damages is not borne out by the record: No issue as to this dam is tendered by the pleadings. The evidence on behalf of plaintiffs is to the effect that the fluctuations of flow complained of commenced in May, 1931, and the testimony as to the diminution in value of plaintiffs' property by reason of defendant's acts related to May, 1931. The undisputed evidence is that the Keno dam was not completed until November, 1931. Furthermore, the evidence does not show that the operation of the Keno dam had any effect upon the general control and regulation of the river exercised by defendant through the Copco plant since 1922.
We need not pass upon defendant's contention that plaintiffs' predecessors, and not plaintiffs, owned the cause of action, if any. This is predicated upon the claim that the invasion of the right of the lower riparian owner took place in 1922, and inasmuch as we have already held that it did, and that consequently defendant has established its prescriptive right, that is determinative of the case.
We have carefully considered the other points urged by appellants but find no merit in them and deem it unnecessary to discuss them in detail.
The judgment is affirmed.
COMSTOCK, Justice pro tem.
THOMPSON, Acting P. J., and TUTTLE, J., concurred.