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District Court of Appeal, Fourth District, California.


Civ. 4476.

Decided: December 04, 1953

Clayson, Stark & Rothrock, Corona, for appellants. Robert E. Reed, Henry Holsinger, Mark C. Nosler and Gavin M. Craig, Sacramento, for respondents. William O. Mackey, Leo A. Deegan, Ray T. Sullivan, Jr., and Arthur R. Seidler, Riverside, for plaintiff in intervention and respondent, Riverside County Flood Control District.

This is a petition for a writ of mandate in which petitioners seek to have canceled and withdrawn a permit to appropriate water issued by the Division of Water Resources of the Department of Public Works to the Riverside County Flood Control and Water Conservation District, plaintiff in intervention and a respondent herein.

The trial court sustained general demurrers to the petition without leave to amend. Petitioners appeal from the judgment which was thereupon entered denying the petition for a writ of mandate and discharging the alternative writ theretofore issued.

It is alleged in the petition that the Temescal Water Company, one of the petitioners and appellant herein, is a mutual water company engaged in furnishing water to the city of Corona and vicinity; that in order to provide an adequate water supply for its shareholders, the company had acquired water rights in and to the flow of the San Jacinto River in Riverside county; that said water rights are based upon appropriative use and upon diversions made pursuant to a permit issued by the Department of Public Works granting the company the right to appropriate ‘not to exceed thirteen (13) cubic feet per second by direct diversion from about March 1 to about December 15 of each season and throughout the remainder of the year as desired for domestic purposes and fifteen thousand (15,000) acre feet per annum by storage to be collected from January 1 to December 31 of each season’; that the water impounded has been stored in a reservoir behind a dam which the water company constructed in Railroad Canyon in 1927, which water has been placed to beneficial use; that the municipal water district includes within its boundaries the city of Elsinore, Lake Elsinore and the valley surrounding said lake; that the sole source of water to replenish said lake and the underground water supply of said valley, aside from a negligible amount of local runoff is the water flowing in the river; that the maintenance of property values in and the general prosperity of the municipal district depend directly upon the maintenance of an adequate supply of water in the lake and also in the maintenance of underground water levels in said valley; that on June 30, 1951, the Division of Water Resources of the Department of Public Works issued permit No. 8623 to the Riverside County Flood Control and Water Conservation District (pursuant to application No. 12753) to appropriate not to exceed 3,070 acre feet of water per annum from the water of Bautista Creek (one of the tributaries to the San Jacinto River and which flows in a northwesterly direction from its source in the San Jacinto mountains to its confluence with the river); that the division is authorized and directed, pursuant to the provisions of Division 2, Part 2 of the Water Code, Section 1250 et seq., to issue permits to appropriate waters subject to appropriation in the State of California; that in the performance of said duty the division is specially enjoined by section 1375 of said code which provides, as one prerequisite to the issuance of a permit, that ‘(d) There must be unappropriated water available to supply the applicant’; that there is no unappropriated water available in the river or its tributary creek to supply the conservation district pursuant to its application, or otherwise; that, to the contrary, there is not now, and for many years last past there has not been, sufficient water in the river system to service or satisfy the vested riparian and appropriative rights of petitioners and of others riparian to said river or possessing vested appropriative rights to the water therein; that the division was without power to issue a permit to the conservation district and the purported permit No. 8623 is void as beyond the jurisdiction of the division; that petitioners have no plain, speedy or adequate remedy in the normal course of the law; and that the conservation district is the real party in adverse interest to this proceeding. The prayer of the petition is for the issuance of a writ of mandate requiring the division to withdraw and cancel said permit No. 8623 and to enter an order denying said application No. 12753.

The principal question to be here decided is whether the petition states facts sufficient to justify the issuance of the writ of mandate. We are of the opinion that the answer to this question must be in the negative.

The petition does not set forth the terms of the permit sought to be canceled or the application No. 12753 referred to therein. It was stated by counsel for respondents in the oral argument before this court that the said permit was granted subject to existing rights and only to unappropriated water and this statement was not denied by counsel for petitioners. While it is true that we may take judicial notice of the records of a public agency, we should be furnished with some official information of the contents of the permit and application involved and of the proceedings had thereon. McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46, 47, 168 P.2d 65; Adoption of McDonnell, 77 Cal.App.2d 805, 808, 176 P.2d 778. The respondent department, under the provisions of Division 2, Part 2, of the Water Code, section 1250 et seq., has authority to issue permits for unappropriated water only and may include therein terms and conditions. Under the circumstances shown by the record, we assume that the permit herein was, as stated by counsel for respondents, subject to existing rights and only to unappropriated water.

Sections 1360–1363, inclusive, Division 2, Part 2, Article 3, of the Water Code provide a method of review by the Superior Court ruling, order, decision, or other official action of the department and section 1094.5 of the Code of Civil Procedure provides for inquiry into the validity of administrative orders or decision by writ of mandate.

In Boren v. State Personnel Board, 37 Cal.2d 634, 234 P.2d 981, 982, the plaintiff sought to annul an order of defendant state personnel board dismissing him from his civil service position. The complaint was a complaint in a civil action. The court there said:

‘Since the enactment of section 1094.5 of the Code of Civil Procedure, it is no longer open to question that in this state the writ of mandamus is appropriate ‘for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board of officers * * *.’

‘Review of an administrative order by means of mandamus is governed by section 1094.5 of the Code of Civil Procedure, which provides: ‘* * * (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’'

In the instant case the petitioners have not attempted to proceed under these methods of review but have based their application on the provisions of section 1085 of the Code of Civil Procedure, which authorizes the issuance of a writ of mandate to ‘compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station’, and they contend that the respondents cannot finally determine the facts of the existence or nonexistence of unappropriated waters, but, to the contrary, this determination is left to the courts. Citing Department of Public Works v. Superior Court, 197 Cal. 215, 221, 239 P. 1076, and Tulare Water Co. v. State Water Comm., 187 Cal. 533, 202 P. 874.

The provisions of the Water Commission Act of 1913, as amended, Deering's Gen.Laws, Act 9091, relative to the appropriation of water subject to appropriation are now contained in Division 2, Part 2, of the Water Code and the purpose of these provisions is to provide an orderly method for the appropriation of the unappropriated waters of the state. There is nothing in these provisions curtailing the rights of appropriators. As was said in Bloss v. Rahilly, 16 Cal.2d 70, 75, 76, 104 P.2d 1049, 1051:

‘* * * the language employed in the act shows an intention to declare the waters of the state to be subject to appropriation in so far as that can be done without interfering with vested rights.’

The respondent department exercises only administrative functions, Wood v. Pendola, 1 Cal.2d 435, 442, 35 P.2d 526, and it is without jurisdiction to finally determine the existence or nonexistence of water subject to appropriation. As was said in Tulare Water Co. v. State Water Comm., supra, 187 Cal. at page 537, 202 P. at page 876; it is manifestly impracticable for th Water Commission to authoritatively determine that there is not water in a given stream subject to appropriation; that what is unappropriated water is a constantly fluctuating question, depending upon the seasonal flow of the stream, the annual rainfall, the forfeiture of prior appropriations and default in the use of riparian rights; and that it was not intended to grant to the commission in the matter of the preliminary permit to file upon unappropriated water more than a supervisorial discretion in the matter of granting such permits.

In Laisne v. California State Board of Optometry, 19 Cal.2d 831, 840, 123 P.2d 457, the court approved the language in Tulare Water Co. v. State Water Comm., supra, that neither the question of priority between claimants nor the existence or nonexistence of unappropriated waters in a stream were questions to be finally determined by the water commission. In Yuba River Power Co. v. Nevada Irr. Dist., 207 Cal. 521, 528, 279 P. 128, it is said that the existence of water subject to appropriation under a permit is a judicial question. And in East Bay Municipal Utility Dist. v. Department of Public Works, 1 Cal.2d 476, 35 P.2d 1027, a petition for a writ of mandate was dismissed when the Department of Public Works inserted a condition in a permit that “the right to store and use water for power purposes under the permit shall not interfere with future appropriations of said water for agricultural * * * purposes.” The petitioner therein insisted that to insert this provision in the permit was to exercise a judicial function which could not be done by said state agency under the decisions. Citing Tulare Water Co. v. State Water Comm., supra; Mojave River Irr. Dist. v. Superior Court, 202 Cal. 717, 262 P. 724; and Yuba River Power Co. v. Nevada Irr. Dist., 207 Cal. 521, 279 P. 128. The court quoted section 15 of the Water Commission Act, as amended in 1921, Stats.1921, p. 443, reading as follows:

“The state water commission shall allow, under the provisions of this act, the appropriation for beneficial purposes of unappropriated water under such terms and conditions as in the judgment of the commission will best develop, conserve and utilize in the public interest the water sought to be appropriated. It is hereby declared to be the established policy of this state that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation. In acting upon applications to appropriate water the commission shall be guided by the above declaration of policy. The commission shall reject an application when in its judgment the proposed appropriation would not best conserve the public interest.”

and held that under the statute unless and until the statutory requirements are met, the applicant obtains no property right or any other right against the state; that if the statutory prerequisites are not present, the application may be rejected in its entirety or a permit may be issued with qualifications as to the use of the water, and under neither hypothesis would it be the exercise of judicial authority; that when an application is filed setting forth the prerequisite facts in the statute, the state agency may not arbitrarily refuse the granting of the permit but may be compelled by mandamus to issue it; but unless all the conditions are present, the water commission may grant a qualified permit consonant with such conditions or may, if justified, reject the application altogether; and that the three cited cases relied upon by the petitioner therein were not at variance with the conclusion reached.

In Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 83, 87 P.2d 848, the rule is stated that where a statute requires an officer to do a prescribed act upon a prescribed contingency, his functions are ministerial, and upon the happening of the contingency a writ of mandate may be issued to control his action.

In the instant case it appears that the department had no authority to finally determine the existence or nonexistence of unappropriated water. It is required under the provisions of the Water Code, sections 1250 to 1253, inclusive, to consider and act upon all applications for permits to appropriate water and to do all things required or proper relating to such application. It is further required to make such investigations of the water resources of the state as may be necessary for the purpose of securing information needed in connection with applications for appropriation of water and to allow the appropriation for beneficial purposes of unappropriated water, under such terms as in its judgment will best develop, conserve and utilize the water sought to be appropriated. There is no requirement that the department make a final determination of the existence or nonexistence of unappropriated water nor can it do so under the cases cited. It is assumed that the department complied with these provisions for petitioners have not alleged facts showing a failure to perform a duty required to be performed by the department. The permit is for unappropriated water only and is subject to existing rights. It seems quite clear that the effect of the permit is only to establish a priority of applications in the event that there is in fact unappropriated water available for appropriation. Petitioners' rights are not affected by the granting of the permit. The petition is subject to a general demurrer in that it does not contain facts showing a failure to perform a duty required to be performed by the department.

It is argued that the court erred in sustaining the demurrer without leave to amend. However, petitioners base their application for a writ on the ground that it must have been established that there was unappropriated water before a permit could be issued. As noted, the department was not required to finally determine this fact. Under the circumstances shown by the record, a writ of mandate is not the proper remedy and it does not appear that the petition for a writ could be amended so as to entitle petitioners to the relief sought.

Judgment affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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