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District Court of Appeal, Second District, Division 3, California.



Civ. 13594, 13595.

Decided: December 31, 1942

Ralph W. Swagler, City Atty., of Burbank, Aubrey N. Irwin, City Atty., of Glendale, and Kenneth K. Wright and Hill, Morgan & Bledsoe, Sp. Counsel, all of Los Angeles, for City of Glendale and another. Ray L. Chesebro, City Atty., and S. B. Robinson, Chief Asst. City Atty., for Water and Power, Samuel Poorman, Jr., Asst. City Atty., and Robert E. Moore, Jr., Deputy City Atty., all of Los Angeles, and A. E. Chandler, Sp. Counsel, of San Francisco, for City of Los Angeles.

So far as may be humanly divined, no one of the three cities which are parties to these two cases on appeal needs ever experience a shortage in its domestic water supply. By the judgments appealed from it has been determined that while the plaintiff city has the prior and superior legal right to so much as it needs and uses of the waters of the Los Angeles River and the water brought from distant water sheds by means of the Los Angeles aqueduct and added to the river, the defendant cities have the right, as against the plaintiff city, to take and use any part of those combined waters that is not being taken and beneficially used by the plaintiff city. That the right thus lodged in the defendant cities is much more than a dry legal right would appear from their insistence that the plaintiff city's present and future needs will not be greater than the aqueduct supply alone. Of more significance, each of the cities party to these actions now has access to the waters of the Colorado River. It follows that such difficulties as exist in determining the respective rights of the parties are not aggravated by the thought that a sentence recognizing a legal right to exist in one party may be a death sentence, ending the existence of one of the other parties. The problems presented by these appeals are important to the several parties and in part to the public and are approached with that thought in mind; but these are not capital cases.

The two actions brought by the City of Los Angeles, one against the City of Burbank and the other against the City of Glendale, are so nearly identical in pleadings and proceedings that their lack of complete identity may, except now and then, be forgotten and the two actions treated in common. Almost all of the issues of fact were disposed of by stipulations. The judgments that were entered (in July, 1939) favored the City of Los Angeles in part and the Cities of Burbank and Glendale in part, with the result that all parties have appealed, each from the phase of the judgments by which it feels itself aggrieved.

This is not the first time that the relation of the plaintiff city to the water of the river that bears its name has been before the courts. A description of the geographical setting and characteristics of that unnavigable stream in harmony with the facts found in these cases, is adequately set forth in City of Los Angeles v. Pomeroy, 1899, 124 Cal. 597, 605 et seq., 57 P. 585, 586, 587, and City of Los Angeles v. Hunter, 1909, 156 Cal. 603, 606, 105 P. 755, 756, 757, and need not be repeated by us. It suffices to say that San Fernando Valley furnishes the capacious bed for the Los Angeles River, a bed with negligible springs but with a mattress of rocks and gravel between whose interstices, below the surface sheet of soil and sand, the bulk of the river slowly moves from its various sources down to the “Narrows” and thence, but for the use made of it by the parties to these actions, on to the sea.

Identified, for our purposes, not by differences in their chemical makeup but by characteristics extraneous to their nature, four species of water are now commingled in the great catch basin of the San Fernando Valley. First to be mentioned are those waters that are there by natural causes, those which without the interference of man constitute the Los Angeles River. Hereafter we shall refer to the waters just identified as the “normal river waters,” whenever we wish to distinguish them from one or more of the other classes of water. To these normal river waters have been added two classes of water from a common source, that source being the waters of the Los Angeles aqueduct which come from across the mountains out of the distant Owens Valley. A part of the aqueduct water has, since 1926, been spread by the plaintiff city upon the coarse sands and gravels of San Fernando Valley with the intent that it should find, and with the result that it has found, its way down into the underground lake forming a part of the Los Angeles River, to reach in due course the diversion works by which the plaintiff city places water into its distributing system. For the purposes of clarity we shall call these “spread” waters. Another portion of the aqueduct water is sold by the plaintiff city to be used for irrigating purposes upon land lying within the San Fernando Valley portion of the City of Los Angeles, with the intent that a portion of it should not be permanently diverted from the city's water supply, but should return, via the underlying, slowly moving lake of water, to the plaintiff city's diversion works. This “return” water, the court found, amounted to 27 1/2 percent of the total distributed for the purposes of irrigation.

The fourth species of waters now flowing beneath San Fernando Valley we shall call “conserved flood waters.” Typical of all Southern California streams having their sources in the mountains, two of the tributaries of the Los Angeles River, Pacoima Creek and Tujunga Creek, at times of heavy rains discharged into the Los Angeles River an “unusual” amount of water, most of which bludgeoned its way on to the ocean. As a part of its extensive program inaugurated to protect property from recurrent floods, and to make an asset of the floods by conserving the water otherwise wasted by them, the Los Angeles County Flood Control District constructed a dam in Pacoima Canyon and another in Tujunga Canyon. By these dams, operated under the control of the District, an average annual volume of three thousand acre feet of water has been restrained until the rainy season was over and then released so gradually that it was added to the supply underlying San Fernando Valley.

The plaintiff city, asserting a right superior to either of the defendant cities in all the waters making use of the surface and subsurface bed of the Los Angeles River, complains of the fact that each of the defendant cities has drilled wells and put into operation pumping plants at points above and near to plaintiff's diversion works and that by means of their wells and pumping plants the defendant cities are withdrawing, to be consumed by their inhabitants, a part of the waters to which the plaintiff city lays claim. In its complaints the plaintiff city originally sought not only a decree quieting its title, and declaring its rights, but it also alleged that for its inhabitants it had need of all the natural river and aqueduct waters, and an injunction was sought to prevent the continued taking of any of these waters by the defendants. (The complaints contain no reference to the conserved flood waters.) By a subsequent amendment to the second amended complaint the allegations peculiar to the statement of a cause of action for an injunction were deleted, the prayer for an injunction withdrawn, and the cases proceeded to trial as quiet title actions or as actions for declaratory relief. As we are of the opinion that the scope of the actions, regarded as ones to quiet title, was sufficiently comprehensive to embrace all material issues, both factual and legal, we find it unnecessary to consider the possibility that an action for declaratory relief is not authorized against a municipality. See Bayshore Sanitary Dist. v. San Mateo, 1941, 48 Cal.App.2d 337, 119 P.2d 752, and Irvine v. Sacramento, etc., Drainage Dist., 1942, 49 Cal.App.2d 707, 122 P.2d 320; but see also La Franchi v. City of Santa Rosa, 1937, 8 Cal.2d 331, 65 P.2d 1301, relied upon in Portnoy v. Superior Court of Riverside County, 1942, 20 Cal.2d 375, 378, 125 P.2d 487, 489, and Otis v. City of Los Angeles, 1942, 52 Cal.App.2d 605, 611, 126 P.2d 954, 957, 958. The plaintiff city was generally successful in obtaining the judgment it sought, and it is to overcome that success that the defendant cities restrict their appeal. By the sixth separately stated defenses set forth in their answers the defendant cities introduced into the cases the question of the conserved flood waters, and on this question the judgments are favorable to the defendants. The plaintiff's appeals are limited to a part only of that portion of the judgments touching on the conserved storm waters.

Between the defendant cities and their contention that they have rights superior to those of the plaintiff city in the normal river waters, stands a dike of decisions. The defendants indicate that they think it was a mistake to have erected the dike, and point out what they claim to be breaches in it, but they recognize its presence. It is made up of these cases: Feliz v. City of Los Angeles, 1881, 58 Cal. 73; Lux v. Haggin, 1886, 69 Cal. 255, 9 P. 919, 10 P. 674; Vernon I. Co. v. Los Angeles, 1895, 106 Cal. 237, 39 P. 762; City of Los Angeles v. Pomeroy, 1899, 124 Cal. 597, 57 P. 585; Los Angeles v. Los Angeles, etc., Co., 1908, 152 Cal. 645, 93 P. 869, 1135; read Los Angeles Farming & Milling Co. v. City of Los Angeles, 1909, 217 U.S. 217, 30 S.Ct. 452, 54 L.Ed. 736; Los Angeles v. Hunter, 1909, 156 Cal. 603, 105 P. 755; and City of San Diego v. Cuyamaca Water Co., 1930, 209 Cal. 105, 287 P. 475. Summarizing the results of these cases, it can be stated that the plaintiff city, as the successor of the pueblo to whom the right was given, has the right to take from the normal river waters as much water as may from time to time be reasonably necessary for municipal purposes and for the use of its inhabitants, both those within and those without the boundaries of the original pueblo; and that this right is prior to and paramount over the right of any other person whether claiming as a riparian owner or appropriator. This is not a complete statement of the principles established by these cases, but serves our present purpose, which is to consider defendants' contention that the plaintiff's pueblo right has been extinguished or at least greatly restricted, by the addition, in 1928, of section 3, article XIV, to the state Constitution, reading: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. 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, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self–executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.”

The defendants' chain of reasoning respecting the effect of this “new” section is this. The pueblo right, they premise their argument, is subject to state control. The policy, written into the constitution by the adoption of the section just quoted, “that the water resources of the State be put to beneficial use to the fullest extent of which they are capable” puts an end to the pueblo right to water, for the latter is inconsistent with that policy. The inconsistency, defendants' argument continues, arises out of the fact that one who might be willing to invest a large sum of money in putting to beneficial use that portion of the waters of a pueblo stream which are not needed and so may not be taken by the holder of the right today, is not willing to make the investment because, under the pueblo right, ten years hence the needs of the inhabitants of the city having the right may require, and hence the city may take, all the waters of the stream. That is to say, because a potential appropriator fails, due to the uncertainties of the future, to make a present use of surplus waters subject to the pueblo right, therefore the pueblo right and the public policy of section 3, article XIV are antagonistic. “We believe that the time has come” the defendants declare “for the courts of this state to strike down all perpetuities relating to water rights * * *.”

If the long recognized pueblo right has not been stricken down by the provisions of section 3, article XIV, fairly interpreted to accomplish their purpose, then the courts should not rewrite the section so as to do it. We are of the opinion that the section was not intended to eliminate from the pueblo the power to take, in the future, such waters as may then be needed, and its terms do not warrant an interpretation that will give the section that effect.

There can be no doubt of the particular purpose back of the section; which purpose, of course, while a guide to the meaning of the section, is not necessarily a limitation upon its scope. That purpose was to subject riparian rights as between riparian owners and appropriators, held in Herminghaus v. Southern Cal. Edison Co., 1926, 200 Cal. 81, 252 P. 607, not to be governed as were all other water rights by the rule of reasonable use, to that rule. See argument to voters, page 14, distributed to the electors by the Secretary of State just before the 1928 general election; see, also, Gin S. Chow v. City of Santa Barbara, 1933, 217 Cal. 673, 700, 22 P.2d 5, 15; Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 367, 40 P.2d 486, 491. We are not surprised, therefore, to find the section, after stating its general principles, speaking specifically (in its third sentence) of riparian rights, expressly placing them under the restriction of its opening, general terms. The section makes no mention of pueblo rights in water, although, as we have noted, that right as vested in the plaintiff city had been the subject of repeated court decisions. The section's silence on this matter is not to be wondered at, however. The pueblo right was already subject to the rule of reasonable use, so that a constitutional amendment was not needed to bring it into line. In the argument to voters, already referred to, there is no suggestion that a purpose of the proposed constitutional amendment was to strike from the pueblo right the uncertain needs of the future in order that appropriators would be encouraged to make use of present surplus waters. Indeed, such a suggestion would seem to fly in the face of, rather than be raised by, the actual situation, for with respect to the only two holders of pueblo rights that have appeared before our courts of appeal, the Cities of Los Angeles and San Diego, it appears to be the fact that large sums of money have been expended by those with rights inferior to and subject to the pueblo right. See City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. 105, 137, 287 P. 475, 490, and discussion of the first affirmative defense, not separately stated, hereafter appearing in this opinion. We conclude that it was never the intention of the voters who adopted section 3, article XIV to strike a blow at the pueblo right.

Not only was it not the intention of the voters to whittle down the pueblo right, but they did not do it unwittingly. By the provisions of the section's third sentence “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 * * *.” But the right of the riparian owner to so much water, in the future, as he may then be able to use “consistently with this section” is not inconsistent with the public policy of the section, for that right has, with the provisions of the section fully in mind, been held entitled to protection, as will be seen from this quotation from Tulare Irr. Dist. v. Lindsay–Strathmore Irr. Dist., 1935, 3 Cal.2d 489, 525, 45 P.2d 972, 986: “The new doctrine not only protects the actual reasonable beneficial uses of the riparian but also the prospective reasonable beneficial uses of the riparian. As to such future or prospective reasonable beneficial uses, it is quite obvious that the quantity of water so required for such uses cannot be fixed in amount until the need for such use arises. Therefore, as to such uses, the trial court in its findings and judgment, should declare such prospective uses paramount to any right of the appropriator. By such declaratory judgment, the rights of the riparian will be fully protected against the appropriative use ripening into a right by prescription, but, until the riparian needs the water, the appropriator may use it, thus, at all times, putting all of the available water to beneficial uses.” Note also the comment in Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 371, 40 P.2d 486, 492, following the quotation from the Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260, 264, case.

Inasmuch as it is consistent with section 3, article XIV, for a judgment to recognize and protect the paramount and prior right of a riparian owner to make such use of his stream as his future needs may reasonably dictate, we conclude that there is nothing in the section that has put an end to the established pueblo right to make such use, in the future, of the stream to which the right attaches as the future may render reasonable. The policy of the section “that the water resources of the State be put to beneficial use to the fullest extent of which they are capable” is satisfied by permitting today's surplus waters of a pueblo stream to be appropriated, without requiring that the right of appropriation be permanent, preventing the possessor of the pueblo right from expanding its use as its needs expand.

The trial court, therefore, did no violence to, but followed, the public policy enunciated by section 3, article XIV, in rendering judgment that the plaintiff city had the prior and paramount right to use all the normal river waters “to the extent that such waters may, from time to time, be reasonably necessary to furnish an ample supply of water for the use of plaintiff and its said inhabitants,” and the defendant cities are not legally aggrieved by this judgment both because it measures plaintiff's right by its necessities and because each defendant was adjudged to have the right, as against the plaintiff, “to divert, for beneficial uses within its corporate boundaries, any and all surplus waters of said Los Angeles River * * * over and above such amounts as may, from time to time hereafter, be reasonably necessary to furnish water for the use of, and may be actually used by, plaintiff and its inhabitants * * *.”

The portion of the judgments from which the defendants have appealed contains much the same provisions with respect to the spread and return waters that were made with respect to the normal river waters; that is, the plaintiff's right to satisfy its needs and otherwise to make beneficial use of the spread and return waters is declared to be superior, but so long as there is a surplus after plaintiff has taken only that which it can beneficially use itself or put to beneficial use, the defendants are entitled to take of the surplus for their needs. The defendants obviously cannot, and they do not, lay any claim to the aqueduct water (the source of both spread and return water) before it comes into, or while it remains in, the aqueduct. They do contend, however, that that part of the aqueduct water which becomes spread water becomes water free from anyone's ownership and therefore subject to appropriation, and that that portion of the aqueduct water which is sold for irrigation purposes also passes from plaintiff's title, with the result that the return waters have no owner until the defendants recapture them. We find neither of these contentions to be tenable.

So long as the defendant cities are the beneficiaries, incidentally though it may be, of the plaintiff's enterprise in bringing the aqueduct water within their reach, that is, so long as there is a surplus of the combined normal river waters and spread and return waters the judgment does not affect them adversely. Inasmuch as the fact that the plaintiff has for some years maintained a steady surplus by adding foreign waters to the normal supply does not create a duty on its part to continue to do so (Stevens v. Oakdale Irr. Dist., 1939, 13 Cal.2d 343, 348 and 352, 90 P.2d 58, 61, 62), and were it established as the law that the plaintiff lost its right to recapture the aqueduct waters by spreading or selling them the city would of necessity, should its needs begin to be equal to the supply so that defendants' taking would threaten a shortage, cease the practice whereby the aqueduct waters became a part of the flow past the defendants' pumps and substitute therefor reservoirs and conduits which would preserve all the aqueduct water for its own inhabitants, we fail to see how the defendants are aggrieved by the portion of the judgment we are now considering, except in theory only.

Even in theory, however, we find the defendants' position not sound. The right to retake the spread waters was not lost by plaintiff's deliberate act of pouring them into San Fernando Valley. To the words “channel of another stream” used in section 1413, Civil Code, where it is said: “The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; * * *” the defendants urge that a “common and natural” interpretation should be given, one that does not include the type of stream and channel that the Los Angeles River proves to be and have. We find it unnecessary to consider whether or not section 1413, Civil Code, does authorize plaintiff's practice. That section, as the defendants state, was but the codification of a principle already recognized in Hoffman v. Stone, 1857, 7 Cal. 46, and Butte Canal & Ditch Co. v. Vaughn, 1858, 11 Cal. 143, 70 Am.Dec. 769, and in construing statutes that do not create but express an established principle of law, the rule of interpretation, expressio unius exclusio est alterius, is inapplicable. Strand Improvement Co. v. Long Beach, 1916, 173 Cal. 765, 772, 773, 161 P. 975, 978; People v. Hinderlider, 1936, 98 Colo. 505, 57 P.2d 894, 896. The principle given expression and applied in Hoffman v. Stone, supra, 7 Cal. 46, is broader than section 1413, Civil Code (if interpreted as narrowly as the defendants would have it), and the reasoning which supports the principle as expressed supports the principle as applied by the trial court to the situation before us.

In the Hoffman v. Stone case, 7 Cal. at page 49, we find it stated in the opinion: “The plaintiffs being the prior locators, it would follow that any interference with the waters of Dutch Gulch would be an infraction of their rights. But the appropriation of the waters did not give them the exclusive use of the bed of the stream. We see no reason why it might not be used by others, as a channel for conducting water, so long as it did not interfere with their rights. If the defendants were diverting the natural water of the stream, as well as that brought into it by themselves, then the plaintiff would have a just cause of complaint.

“It would be a harsh rule, however, to require those engaged in these enterprises to construct an actual ditch along the whole route through which the waters were carried, and to refuse them the economy that nature occasionally afforded in the shape of a dry ravine, gulch, or canon.” How clearly applicable are these words to the situation involved in these cases. Before the aqueduct waters began to flow, in 1913, it had been determined that the San Fernando Valley was a large detritus filled basin, in which the waters of the Los Angeles River and its tributaries slowly moved, as through a lake with a thousand islands, down to the narrows. (See cases first cited.) It had also been determined, in Los Angeles v. Hunter, supra, 156 Cal. 603, 105 P. 755, 756, that the right of the plaintiff was superior to that of the owners of some five thousand acres of land “situated in the southeastern portion of the San Fernando valley, where the surrounding mountains draw together and form what is called the ‘Narrows,’ ” with the result that the owners' right to take water from their wells, some located three miles from the surface stream, was limited to such times as there was water flowing in the surface stream. What could be more sensible, then, than to permit the use of this great natural reservoir, this valley, in reality a canyon when its detritus filled depth is included in our conception of it, this slowly moving lake, to store and conduct the aqueduct waters along with the normal river waters to plaintiff's diversion works, rather than to require plaintiff to build, at great expense, artificial lakes, and lengthy conduits to accomplish the same purpose. So far as is apparent, nobody is being injured by plaintiff's use of this under surface river bed, already wet with water. The defendants, who acquired their lands, some of them involved in the Hunter case, in order to be over the waters in the San Fernando Valley, are certainly in no wise injured. The conclusion is not to be avoided that the plaintiff, insofar as it spread the waters of the aqueduct in the San Fernando Valley with the knowledge that so long as water continued to run down hill these waters would, in due time, arrive at a point where they could be recaptured, and with the purpose of then recapturing all or so much of them as might at the time of recapture be needed, did not abandon the waters, or turn them free to be taken by the one who first got to them. Authority and common sense support the conclusion that the plaintiff did not lose title to its spread waters.

With respect to the return waters the same conclusion must be reached. Both waters, of course, are from the same source, the aqueduct water of the plaintiff. The spread waters became immediately and quite completely a part of the waters flowing down the valley, while the waters delivered for the purposes of irrigation do not immediately sink through the surface soil down into the gravel and rocks lying underneath, and only a little over a quarter of the total delivered to the ranchers of the valley is not lost in transit. But the plaintiff made use of this part of its aqueduct water with the expectation and purpose that a goodly portion of it would by the nature of the plan adopted find its way back again, via the slow but steady flow of the waters of the valley, down to its distributing system. Every fact so far noted is consistent with and supports the conclusion that the plaintiff had not lost the right it once had to the waters which, after serving the ranchers, return to its control. We find apt this requotation appearing in Stevens v. Oakdale Irr. Dist., 1939, 13 Cal.2d 343, 351, 90 P.2d 58, 62: “ ‘One who by the expenditure of money and labor diverts appropriable water from a stream, and thus makes it available for fruitful purposes, is entitled to its exclusive control so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run–off and deep percolation, necessarily incident to practical irrigation. Considerations of both public policy and natural justice strongly support such a rule.’ Note 89 A.L.R. 212, quoting from United States v. Haga, D.C., 276 F. 41, 43.” This quotation also appears in Ide v. United States, 1924, 263 U.S. 497, 506, 44 S.Ct. 182, 185, 68 L.Ed. 407, 412, with these additional words: “ ‘Nor is it essential to his control that the appropriator maintain continuous actual possession of such water. So long as he does not abandon it or forfeit it by failure to use, he may assert his rights. It is not necessary that he confine it upon his own land or convey it in an artificial conduit. It is requisite, of course, that he be able to identify it; but, subject to that limitation, he may conduct it through natural channels and may even commingle it or suffer it to commingle with other waters. In short, the rights of an appropriator in these respects are not affected by the fact that the water has once been used.’ ”

The only fact then, of any possible significance, to distinguish the spread waters from the return waters is that the return waters were “sold and delivered * * * for agricultural and domestic uses, to farmers and other persons residing, and owning property, in * * * San Fernando Valley * * *.” This quotation from the findings of fact filed in these actions is supported by the stipulation, by which many of the facts in the cases were established, where almost the precise words of the finding appear. It also appears, in an appendix to the stipulation, that special rates were fixed by ordinances for the water delivered for purposes of irrigation. There can be no doubt that of the volume of water sold and delivered to the farmers, by far the larger portion was intended to be and was actually used for irrigation purposes under conditions which resulted in the return of a considerable quantity of the water to the underground storage–stream. Strictly speaking, therefore, it was the use of the water, except for inconsequential domestic consumption, that was sold by the plaintiff city; the farmers did not acquire the right to devour or divert in some way the bulk of the water so that none of it would find its way back to plaintiff's possession. The effect of the sale and delivery of the water for agricultural uses was that its return to the plaintiff, after fulfilling the uses for which it was sold, was inherent in plaintiff's plan, and the return was not due to its abandonment by the ranchers and householders as a result of their determination not to consume or divert it in some other way. The return waters were not lost to the plaintiff due to the fact that they had been sold and delivered for use in the San Fernando Valley for agricultural and domestic uses.

It is no doubt true, as the defendants point out, that the intent to recapture must be present when the waters are started on their way down the valley. It does not follow from this, however, that the right to recapture exists only if the intent is to recapture all the water, whether needed or not. An intent to recapture only so much of the waters as at the time of recapture are desired, negatives an abandonment of the water or a surrender of the right to recapture it all if all proves necessary. It should further be observed, as pointed out in Stevens v. Oakdale Irr. Dist., supra, 1939, 13 Cal.2d 343, 350, 90 P.2d 58, 61, 62, and called to our attention by the defendants, that there is a distinction between a water right, that is the right to take water from a stream, and the right to water actually and already taken. All of the latter might be let run waste today, with no intention of recapture, without leading to a denial of the right, tomorrow, to make use of a natural reservoir and passageway to carry the water, which has been taken, down to a lower point where such portion of it as should be needed may be retaken. It is this right in the plaintiff which the judgment protects. So long as there is a surplus of water placed in the valley with the purpose of reclaiming whatever can be put to a beneficial use, the defendants, it is adjudged, are entitled to take so much of it as may be put to such use. Should the time come when there is no surplus, it will be only because the plaintiff has done that which it planned to do when it poured its aqueduct water into the interstices of the valley; that is, it will have retaken its own.

So far we have spoken of the normal river waters, spread and return waters and conserved flood waters as though they were separate, identifiable entities, as initially each was. But it should be borne in mind, as we proceed now to consider the special defenses, and some contentions that may best be considered in connection with them, that these actions were occasioned by the fact that the defendants were taking water from wells drilled in the lower part of the San Fernando Valley, wells located at a point where the water that is taken out during any given day may be, and probably is, a mixture of all four species of water, with the percentage of each in the whole quantity taken a matter of pure guess work. In some of our problems this fact, that the four classes are hopelessly combined, is of no consequence; in others, it is of importance. Nor should it be forgotten that these cases went to trial as quiet title actions, unaccompanied by a prayer for injunctive relief.

The first defense interposed is that of estoppel. Somewhat inconsistent with their argument that the pueblo right to satisfy future needs discourages present development, but not for its inconsistency to be disregarded, the defendants alleged and proved that each had expended a large sum of money ($838,158.11 in one case, $5,602,075.94 in the other) for the acquisition of land, the boring of wells thereon and the development of a distributing system. Other allegations are made respecting the phenomenal growth in population and assessed valuation of the defendant cities, dependent upon the belief that there would be a continuous water supply. The obvious is added, that if water should become unavailable these prosperous cities of homes and industries would become desert waste. The contention, that the plaintiff city is estopped to question the right of the defendants to continue to take water from the supply tapped by their pumps, is based on the added averments that plaintiff knew all the above related facts, and acquiesced in the defendants' expenditures, and diversion of water, making no protest and that the defendants relied upon the plaintiff's acquiescence. The trial court found most but not all of these allegations to be true, but found that it was not true that the defendants acted in reliance on any of the plaintiff's acts or omissions.

We see no need of treating of this affirmative defense of estoppel at length in this opinion, in view of what has been said of similar pleas in City of San Diego v. Cuyamaca Water Company, 1930, 209 Cal. 105, 137, 143, 287 P. 475, 490–495, and in Stevens v. Oakdale Irr. Dist., supra, 1939, 13 Cal.2d 343, 353, 90 P.2d 58, 63. We shall note only two factors: (1) the defendants initiated their projects of obtaining water by means of wells in the San Fernando Valley in 1913, before which time all of the “dike” of cases, earlier referred to, that dealt particularly with the Los Angeles River, had been decided and of course must be presumed to have been known to the defendants; (2) during all the time that the defendants have been taking water out of their wells they were doing so rightfully and not in contravention of the plaintiff's right, for there was, as there still is, a surplus of water. The plaintiff is not estopped to have it decreed that should a shortage ever develop, it has the paramount and prior right to the normal river water, and to that which originated in its aqueduct.

The burden of the defendants' first separately stated defense (the one just considered not being so stated) was that the plaintiff city had acquired the title to all the water in Owens Valley and from that source had for some time been, and was still, taking, via its aqueduct, all the water that it and its inhabitants needed. The defendants offered to prove the facts as alleged and also the further fact that the Owens Valley source was ample to supply the plaintiff with water for the discernible future as well as the present, and one of their complaints on this appeal is that their offer of this proof was rejected. In view of the defendants' right to take from the supply of water flowing by their wells that which is not being beneficially used by the city (we are not here attempting a complete statement of the right and its limitations) it would be a good reason for denying an injunction prohibiting the further operation of the wells if it were made to appear that there was an ample supply available for the plaintiff over and above that which the defendants threatened to take. But not only did this ultimate fact appear, that is, that at present there is a surplus, but the actions had ceased to be actions in which injunctions were sought; they were only quiet title actions in which the quantity of water available was not of importance. “In the pending quiet title action it will not, of course, be determined that the city is or is not entitled to any particular quantity of water. * * * The subject–matter of the action is the establishment of the priority of right, and not the quantity of water to be taken.” These words from Cuyamaca Water Co. v. Superior Court, 1924, 193 Cal. 584, 588, 226 P. 604, 605, used to give the court its bearings in City of San Diego v. Cuyamaca Water Co., supra, 1930, 209 Cal. 105, 109, 287 P. 475, 478, serve to keep us on our true course. What was said in Tulare Irr. Dist. v. Lindsay–Strathmore Irr. Dist., 1935, 3 Cal.2d 489, 525, 45 P.2d 972, 986, concluding with the statement, “The trial court, under the new doctrine, must fix the quantity required by each riparian for his actual reasonable beneficial uses, the same as it would do in the case of an appropriator” must be understood in its setting. An injunction was there sought, and that which the Supreme Court was saying appears expressly to have been because the scope of an injunction was at issue.

Tied up with the problem just discussed is the further contention of the defendants that the court should have declared, “that the plaintiff, in light of the public uses of the defendants in and to the waters of the Los Angeles River, should be first required to utilize its water resources in the Owens Valley before destroying such public uses.” When the court in some appropriate proceeding is asked to destroy the public uses referred to, or is called upon to protect them from threatened destruction, then it will be time to consider whether or not the plaintiff has resources in the Owens Valley region which it should first develop or if there is some other possible solution, preferable to that threatened. Then will be the time to weigh defendants' argument that because they are putting the water to a public use, plaintiff's paramount right to the water for its public use, in the event a shortage brings the two rights into conflict, cannot be protected by injunctive relief, but only compensated for by inverse condemnation. If the solution sought should be to deprive those cities who have been obtaining water by contract from the plaintiff city, of the right to the further fulfillment, or renewals, of such contracts, doubtless they will be given an opportunity to present their claim to continue life. But in these actions the trial court was only called upon to determine the relative rights of the parties; not to attempt to peer into the distant future in order to detail plans to operate when those rights begin to rub one against the other.

The defendants argue that the offer of proof should have been accepted for an additional reason. They say that had they been permitted to prove that the plaintiff city went to Owens Valley to obtain all the water that it ever would need, then “it certainly would have followed, as the night the day, that the defendants had the right to believe that [the plaintiff] was relinquishing its rights in the valley to the use of others, and that the plaintiff was intending to rely upon the ‘aqueduct water.’ ” We must decline to reverse the judgment for any such reason, for the defendants did not plead that the aqueduct was sufficient for all future needs, nor did they plead or offer to prove that the defendants had exercised the “right to believe,” or had ever believed, that the plaintiff had intended to abandon its pueblo right.

Of the second and third separately stated defenses it can also be said that they were appropriate so long as the actions remained ones in which injunctions were sought, but that they have no significance in these quiet title actions. They may be summarized as follows: (1) that during the past five years there have been surplus waters; and (2) that a part of the surplus is all that the defendants have taken. Of these facts there is no doubt, and the judgment recites that no right of the plaintiff in the normal river waters or in the spread and return waters has been invaded or infringed by the defendants, for the defendants have a right to take from the surplus. There is, perhaps, a further suggestion in the second separate defense; that is, that because the plaintiff city has failed for five years to take or be prepared to take all the normal river waters that it no longer has the right to do so. We have not endeavored to pass on the merits of the defendants' claim that the evidence is insufficient to warrant a finding that the city has made use of all the normal river water, for it has been our conclusion that for no purpose of these actions is the matter important. The pueblo right, if not used, is not lost by nonuser, no matter for what period. See City of San Diego v. Cuyamaca Water Co., supra, 1930, 209 Cal. 105, 287 P. 475, where there was almost no use made by the holder of the right for some ninety–six years.

What we have already said respecting other matters expresses in a large measure our reasons for finding no merit in defendants' fourth and fifth separately stated defenses. In the first of these, allegations were set forth upon which the defendants predicate their claim that they have acquired prescriptive rights to take from the normal river waters the amounts (approximately ten cubic feet per second in the case of one defendant, three cubic feet in the case of the other) which they have been continuously taking for five years. The fifth defense is that the defendants have taken the ten and three cubic feet amounts of water from the return waters, with the result that they have a right to continue to take that amount. Each of these defenses failed to surmount a difficulty of proof found at the initial stages of its presentation. One who is shown to have title to a definite amount of water, which becomes combined with other water of like physical properties, may abstract from the combined body of water an amount equal to that which he put in; the fact that he cannot identify it as the precise water which was his does not matter. Butte Canal & Ditch Co. v. Vaughn, supra, 1858, 11 Cal. 143, 151, 70 Am.Dec. 769. But one who had no title to any of several distinct sources of water as they combine to make a single supply, in the nature of things is unable, as he takes from that supply, to establish that he is taking water of any particular source. Where, then, his prescriptive title depends upon proof that the water he took was water identifiable as being from a particular source, he is stymied.

An examination of defendants' claims in the instant cases demonstrates the soundness of the conclusion we have just stated. The defendants lay no claim, based upon a taking creating a prescriptive right, either to the spread waters or to the conserved flood waters that flow by their wells. How then can they prove either of their inconsistent fourth and fifth defenses in which they have alleged that for five years their respective takings of ten and three cubic inches have been, first, from the normal river waters, and, second, from the return waters? The trial court might well have concluded that an unknown part of the water which the defendants took was return waters and an unknown part came from the normal river waters; a finding that all came from either source alone, or from both these sources together, would be utterly without support in the evidence. Such a finding was not made, but was essential to establish a right by prescription to the waters of either particular source.

The claim of the defendants to a prescriptive right to any of the waters that flow past their wells must be denied for further reasons. In City of San Diego v. Cuyamaca Water Co., supra, 1930, 209 Cal. 105, 135, 287 P. 475, 489, it was determined that a right to waters which were subject to a pueblo right could not be acquired by prescription. It was further held in this same case that the essential basis of the assertion of a prescriptive right is an adverse use, and that there is no adverse use present where the one claiming to have acquired a right by prescription has, with right, made use of waters, to which use the one against whom the right by prescription is claimed, had no right to object. In our case, as in the Cuyamaca case, during the period when, according to the defendants' contention, a right by prescription was created, there was a surplus of water, so that the plaintiff was in no position to object to the defendants' dipping into the supply for the plaintiff did not need that which the defendants were taking and the defendants were within their rights in the taking. Under these circumstances no right by prescription arose.

Much the same difficulty faces one who claims that a right in water from a particular source is lost, because all of the water from many sources is not used, as confronts one who has the burden of proving that he has used a definite quantity of water from a particular source as the result of taking from combined waters. In such a difficulty the defendants place themselves by now making a contention not forecast by any affirmative defense, that the plaintiff has lost some or all of its right to use the normal river water by its failure to use the same for either ten or three years. For these periods of non–use the defendants rely upon sections 11 and 20a of the Water Commission Act (Act 9091, Deering's General Laws, 1937). The pertinent provisions of section 11 are quoted in Herminghaus v. Southern California Edison Co., supra, 1926, 200 Cal. 81, 115, 252 P. 607, 621; a reading of them discloses their inapplicability to the non–user of water claimed under a pueblo right, for they deal with riparian rights.

Section 20a of the Water Commission Act is no more applicable. It has read since its inclusion in the Act in 1917: “When the party entitled to the use of water fails to beneficially use all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of three years, such unused water shall revert to the public and shall be regarded as unappropriated public water.” We are inclined to the opinion that this section is limited to water either appropriated or acquired by condomnation and not to water the title to use which rests upon a grant to a pueblo. To hold that this section could be used to defeat a pueblo right would be to reach a decision contrary to that reached in City of San Diego v. Cuyamaca Water Co., supra, 1930, 209 Cal. 105, 287 P. 475, although the precise point was not there discussed. This we would hesitate to do. Moreover, the evidence does not justify the application of the section, for the most that can be said for the evidence is that it shows that the plaintiff city had, for the three years preceding the judgment, not used all of the combined waters at its disposal; no finding that any defined portion of the normal rivers' waters had remained unused for three years would have been supported.

We find in none of the many points presented by the diligent counsel for the defendants, therefore, any ground for reversing or modifying the judgment. Nor do we find occasion to criticize the portions of the judgment from which the plaintiff appealed. It will be remembered that by their sixth separately stated defenses the defendants alleged that by action of the Los Angeles County Flood Control District two dams had been erected in two of the largest tributaries of the Los Angeles River, which served to restrain waters that following heavy rains would, but for the dams, have passed as flood waters to the sea. Some 3,000 acre feet of water so conserved, the trial court found, was released by the district under such conditions that it found its way down into the great catch basin of the San Fernando Valley, where it mingled with the other waters. The judgment has three provisions respecting these conserved flood waters: (1) that the plaintiff does not have a paramount and prior right to them; (2) that the defendants have, as against the plaintiff, a right to use such amounts of the conserved flood water as are being used, and the plaintiff has no right to interfere with such use; (3) that the plaintiff shall regulate the flow of its aqueduct water so as not to occupy space in the San Fernando basin that would otherwise be occupied by the conserved flood waters. Plaintiff's appeal is limited to the first of these three provisions; it gave notice that it appealed “from those portions of that certain Judgment * * * decreeing that the prior and paramount rights of Plaintiff as against Defendant do not include the right to that class of water designated in said judgment as ‘said conserved flood water’; and * * * insofar as it fails and refuses to decree that the prior and paramount rights of Plaintiff as against Defendant do include the right to that class of water. * * *” Some interesting problems which suggest themselves respecting the other two provisions of the judgment are therefore not before us.

The judgment is drawn with care so as not to include within the provisions respecting the conserved flood waters any amount of water that would have been put to any beneficial use by the plaintiff had the dams not been built. Had the dams been built by the plaintiff it may well be that, so far as the water thereby conserved could be put to a useful purpose, it would have the prior right to the water. Had the dams been built by the City of Santa Monica, for illustration, that city, no doubt, would have had a prior and paramount right to put to a beneficial use the water its enterprise had salvaged. We know of no recognized right created by the pueblo grant now lodged in the plaintiff which casts a doubt upon this conclusion, and we believe it to be required by the present public policy as developed in the several cases revealing the purpose of section 3, article XIV. In addition to those already cited, see City of Lodi v. East Bay Mun. Utility Dist., 1936, 7 Cal.2d 316, 60 P.2d 439, and Meridian, Limited, v. San Francisco, 1939, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105. The Los Angeles County Flood Control District, plaintiff points out, does not claim title to the water saved through its fulfillment of the purposes for which it was created. The waters back of the dams of this state agency were, however, unappropriated public waters, and there was nothing that changed their character into waters belonging to the defendant by the district's act of pouring them into the reservoir and channel which was being used by the plaintiff for safeguarding and transporting its aqueduct waters down to lower levels. Subject to state law these conserved flood waters may be appropriated. So far, the plaintiff has not acquired a prior and paramount right to them, and the judgment rightly failed to declare that it had.

The judgment, having survived all the attacks made upon it, is affirmed.

BISHOP, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.

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