ALLEN v. CALIFORNIA WATER TELEPHONE CO (1945)

This is an appeal from a judgment restraining defendant from pumping, and transporting from the watershed, underground waters of the Tia Juana River Basin after December 31, 1944.

The record is long and there are many exhibits before us. Without an opinion of unconscionable length it will be impossible to review the evidence with any degree of particularity. Many of the fundamental facts are not in dispute. There is an unusual lack of conflict in much of the testimony of the experts called by the respective parties, their opinions differing more on the conclusions to be drawn than on many of the facts upon which those conclusions are based. We will confine our statement principally to those facts not in dispute and those other facts tending to support the findings and judgment and as far as possible will not notice conflicting evidence.

The complaint was filed on June 30, 1936. All plaintiffs claimed water rights in the Tia Juana River. They filed an amended and supplemental complaint on December 21, 1939, upon which the action was tried. They alleged their respective ownerships of land; that each tract of land was riparian to the Tia Juana River; that each plaintiff obtained water for domestic use or irrigation by pumping from the water percolating through the sands and gravels underlying the surface of the Tia Juana River Basin and fed by the waters of that stream; that large portions of the lands are devoted to agriculture and others to orchards and vineyards; that many of the properties are improved with homes occupied by the owners or their tenants; that there is no other water supply available, and without that water the lands would become barren and unproductive. The amount of water required for reasonable and beneficial use on the respective ownerships is particularly alleged. It is also alleged that defendant is the owner of land and wells in the Tia Juana River Valley and is constructing a large pipe line to convey the water pumped from the basin to distant places which are not riparian and are not in the Tia Juana River watershed; that after the large quantity of water which defendant proposes to transport, is removed, there will not remain in the basin sufficient water for plaintiffs' use and the water level wil be so lowered that the water in plaintiffs' wells will become salty, alkaline, brackish and unfit for either domestic or agricultural use.

Plaintiffs pray that defendant be enjoined and restrained from removing and transporting the water from the Tia Juana River Basin; that the court determine and declare the amount of water necessary for each parcel of land required for present and future reasonable and beneficial use; that the rights of plaintiffs be declared prior and paramount to any right of defendant to any of such water; that defendant be restrained from asserting any right adverse to the prior rights of plaintiffs in those waters.

The answer of defendant put in issue some of the riparian rights claimed by plaintiffs. It alleged that the water that could be put to a reasonable and beneficial use by plaintiffs was much less than that claimed and that there was a sufficient annual safe yield from the Tia Juana River and its basin to supply the reasonable and beneficial demands of plaintiffs and permit defendant to export annually 3200 acre feet of water without an undue drain on the supply and without doing any damage to plaintiffs or injuring them in any way.

Defendant filed a cross-complaint against plaintiffs and against, presumably, all of the other riparian and appropriative owners of rights to waters of the Tia Juana River and its basin, and also the holders of liens on many of the riparian lands. By this cross-complaint it was sought to have determined the interests of the various cross-defendants in the waters of the Tia Juana River and the waters underlying the Tia Juana River Valley, and the rights of the cross-complainant and of each cross-defendant in those waters. It was also the purpose of the cross-complainant to have the trial court make reasonable regulations for the use of those waters by the parties with the court reserving to itself the right to change or modify its decree as occasion might demand.

Cross-complainant attached to the pleading copies of two permits, the first dated May 15, 1924, and issued by the Acting Chief of the Division of Water Rights, Department of Public Works, and the second, dated May 21, 1932, issued by the Department of Public Works, which permitted cross-complainant to export 3200 acre feet of water annually from the Tia Juana Basin to distant points. The permits were made subject to the prior rights in those waters of any other persons and contained conditions which need not be detailed here.

Many cross-defendants filed answers, but more did not appear. We are referred to no part of the record showing service of summons on any of the cross-defendants. The trial judge filed an exhaustive opinion in deciding the case, from which it appears there was no proof of service of process on any of the cross-defendants and that no defaults had been entered.

It is stated in the briefs that the cross-complainant filed with the clerk of the court a voluntary dismissal of the cross-complaint as against all non-appearing cross-defendants. Respondents, other than the City of San Diego, assert, without reference to the record, that this dismissal was filed on July 13, 1942, after the decision of the case by the trial judge and therefore was not effective under the provisions of section 581 of the Code of Civil Procedure. See MacDermot v. Grant, 181 Cal. 332, 184 P. 396; Jalof v. Robbins, 19 Cal.2d 233, 120 P.2d 19.

In both the findings and judgment it is recited that the cross-complaint had been dismissed against numerous cross-defendants, presumably all of those who had not appeared. We are required to presume the correctness of proceedings leading up to the judgment, so, in the absence of any showing to the contrary, we must presume that the cross-complaint had been regularly dismissed against all of those cross-defendants named in the judgment as having had the cross-complaint against them dismissed. Jones v. Wilton, 42 Cal.App.2d 45, 108 P.2d 29; Estate of Hart, 11 Cal.2d 89, 77 P.2d 1082.

Besides filing its amended answer to the cross-complaint the City of San Diego filed an amended cross-complaint seeking to quiet its title, as against defendant, to 420 acre feet of water per annum from the waters of the Tia Juana River and its underground basin as necessary for the irrigation of about 105 acres of riparian land owned by it. The trial court awarded the City 224.50 acre feet of water per annum.

The trial court found that the annual safe net yield of water from the Tia Juana River Basin in the United States was 6000 acre feet, and that the present annual reasonable and beneficial consumptive use of those having riparian or appropriative rights prior and superior to those of defendant and cross-complainant was 7000 acre feet, with a future use of 500 additional acre feet per annum. The judgment was dated December 1, 1942, and enjoined defendant from pumping and removing from the Tia Juana River watershed any of the underground waters of the basin and any of the surface flow of the Tia Juana River, except that which was wasting into the ocean, and subject to the exception that it could divert and export 1100 acre feet for the year ending December 31, 1942, 1100 acre feet for the year ending December 31, 1942 (probably a typographical error and should be 1943), and 550 acre feet for the year ending December 31, 1944. The court reserved jurisdiction in order that, on application made before December 31, 1944, it might modify the judgment.

Defendant has appealed from the judgment. The principal ground urged for its reversal is that the trial court erred in concluding that there were no surplus waters in the Tia Juana River Basin over and above the reasonable and beneficial use of the owners of riparian and appropriative rights which admittedly were prior and superior to any right of defendant to water in the underground basin of the river. It is argued that the evidence conclusively shows such a surplus to exist so that defendant may pump and transport it without infringing on any of the rights of the successful parties and without injury to any of them. While there are numerous other questions argued at length, this one is of primary importance.

The Coronado Water Company was a California corporation engaged in the business of supplying water to the City of Coronado and other communities around San Diego Bay. In 1935, defendant California Water & Telephone Company purchased all of the business and assets of the Coronado Water Company which was then disincorporated. Defendant continued to furnish water to Coronado and the other Bay communities as well as to government installations on North Island and elsewhere in the South Bay District.

The Southern California Mountain Water Company was a corporation engaged in the business of developing, distributing and selling water. In 1912 the City of San Diego purchased its water rights and system on the Otay River, subject to the Company's obligations to furnish water, and continued and expanded its system.

Early in 1912, the Southern California Mountain Water Company had entered into a contract with the Coronado Water Company to furnish the latter with water. This contract, which was modified in 1936, is sufficiently described in the case of City of Coronado v. City of San Diego, 48 Cal.App.2d 160, 119 P.2d 359. It furnishes one of the grounds for the estoppel urged by defendant against the City of San Diego in this action.

The Tia Juana River rises in Mexico some 60 miles easterly from its mouth at the Pacific Ocean. In speaking of the river emptying into the Pacific Ocean we will not distinguish between that portion which may empty into the ocean proper and the other which flows into the southern end of San Diego Bay.

The entire river runs through Mexico except for the westerly six miles from the point where it crosses the International Boundary Line between Tia Juana, Mexico, and San Ysidro, United States. The watershed of the Tia Juana River is entirely within the Republic of Mexico except for a small area in the United States drained by the Arroyo Seco and that drained by Cottonwood Creek which is one of its principal tributaries.

Cottonwood Creek rises in the mountains about 45 miles east of the Pacific Ocean. Its drainage area is chiefly in the United States although Rio de Tecate flows into it from Mexico. Cottonwood Creek crosses the International Boundary at a point about 20 miles easterly from the Pacific Ocean and continues in a southwesterly direction until it joins the Tia Juana River about half way between the Rodriguez Reservoir in Mexico and the International Boundary. Thus all of the water which flows in the portion of the Tia Juana River within the United States, and fills the portion of the Tia Juana River Basin there, flows or percolates from Mexico across the International Boundary.

The Tia Juana River and its tributaries originally drained an area of about 1668 square miles. Various dams have been constructed in Mexico and the United States restraining the flow of various streams so that the uncontrolled drainage area of the Tia Juana River and its tributaries has been reduced to about 469 square miles. In order to determine the total water supply of the Tia Juana River Basin, other than that falling during rains, there must be added to the water originating in this area, the water released from the dams during periods of high water, and the leakage and percolation from the dams.

Like most Southern California streams, the flow of the Tia Juana River is intermittent. During years of excessive rainfall the Tia Juana Valley, both in Mexico and the United States, has been swept by disastrous floods. During years of very deficient rainfall there has been practically no surface water running in the river bed in the United States.

The records of rainfall in the Tia Juana river Drainage Basin have been kept for a relatively few years. The same is true of measurements of the flow of the river.

Plaintiffs have produced records of rainfall in the City of San Diego from 1849–1850 to 1942–1943, inclusive, which shows an average annual precipitation of 10.04 inches. While it may not be exact it gives some indication of the rainfall of the Tia Juana River Basin. The record shows substantial periods of subnormal rainfall interspersed with years of near normal, normal, or more than normal precipitation. In the years from 1856–57 to 1863–64, inclusive, the average rainfall was 7.25 inches, from 1869–70 to 1872–73, inclusive, it was 5.666 inches, from 1891–92, to 1901–02, inclusive, it was 7.786 inches, and from 1922–23 to 1924–25, inclusive, it was 5.943 inches. From 1925–26 to 1942–43, inclusive, there were six years of subnormal rainfall, and seven years in which it was considerably in excess of normal, with the balance of the years slightly in excess of normal. Thus it is apparent that the district is subject to periods of rather serious drought interspersed with periods of normal or above normal rainfall which in years of excessive rainfall have produced serious floods with the wastage of water into the ocean.

Plaintiffs produced as their expert witness, Mr. Lee, who testified at great length during the trial. He estimated that during a seven year period of drought, including one year of normal rainfall, the annual average underground flow of the Tia Juana River from all sources at the International Boundary Line would be 1736 acre feet, plus a surface flow for each of two years out of seven during the non-run-off period of 218 acre feet. On the other hand Mr. Bowen, an expert called by defendant, estimated the annual average run-off of the Tia Juana River, calculated over a 53 year period, at 19,200 acre feet. Of course no figures are available showing the flow of the river for any such period, his conclusion being based on records of the flow of other streams in San Diego County. Further, the drainage area of the Tia Juana River has been greatly reduced in recent years by the construction of various dams.

Mr. Lee estimated the storage capacity of the Tia Juana River Basin in the United States at 20,620 acre feet, while Mr. Bowen estimated it at over 40,000 acre feet. Mr. Lee considered only the storage capacity of the upper 45 feet of the fill due to the difficulty of sinking wells into the large gravel and boulder formations nearer its bottom, while Mr. Bowen calculated the storage capacity down to bed rock, so the figures of the two experts are not so far apart as they might seem.

There is a station for measuring the surface flow of the river at Nestor Bridge which crosses the stream just east of the east line of the property on which defendant's wells are located and about 2–1/212 miles east from the ocean. The following is the record of the surface flow of the river, up to the time of trial, for the years in which any accurate records are available:

The Tia Juana River Basin starts at the Agua Caliente Narrows east of the town of Tia Juana. From that point it broadens into a valley that passes through Mexican territory, thence into the United States, and thence in a general easterly and westerly direction for about six miles, terminating at the Pacific Ocean. It is an alluvial fill from one to one and one-half miles wide. It is bounded on the south by uncultivated bench land and on the north by a mesa called Nestor Terrace which is about 25 feet above the valley floor. The valley was originally formed by erosion which was gradually filled with various materials which vary from place to place, from sand to silt and some clay, with gravel and boulders underneath. Counsel for defendant state in their brief that ‘There is sufficient interconnection between all of the material in the valley fill to make it one solid body of water’, and the evidence indicates it to be true.

Bed rock is about 40 feet below the surface at Agua Caliente and about 90 feet at the International Boundary Line from which point it descends to 100 or more feet below the surface near the ocean. The surface of the valley fill descends from an elevation of about 50 feet sea level near the International Boundary Line to about 10 feet above sea level at roughly a mile east of the ocean.

The northerly and southerly limits of the basin are under the mesas we have mentioned although there is percolation of fresh water from the basin during periods of high water level into sands or gravel underlying Nestor Terrace, and a drainage of both fresh and salt conate waters into the basin from the sands underlying Nestor Terrace when the water level in the basin is sufficiently low. The parties to this action owning lands on Nestor Terrace bordering the basin, with one exception, were found to have obtained their water supply by means of wells from the underground percolating waters of the basin and to have rights to those waters superior to those of defendant.

The westerly boundary of the fresh water basin is largely described by evidence produced by defendant. According to that evidence the valley fill along and easterly of the shore line is more dense and less permeable than the main body of the fill. There is a fresh water barrier that rises above the level of the salt water which prevents the salt water from seeping into the fresh water basin. According to defendant this fresh water barrier is rather clearly defined although it is broken by salt water sloughs extending from the lower reaches of San Diego Bay easterly beyond the line chosen by defendant as the westerly edge of the fresh water barrier. This barrier was described by one of the counsel for defendant during the oral argument as follows: ‘There is a water table which exists approximately in here, five feet above sea level, that is maintained at a level five feet above, and I think it has gotten down to three feet, and that will be maintained and it has kept any possible encroachment of sea water from coming in the valley. In other words, it (sea water) cannot come in over fresh water higher than it is. There is this wall of water here for a mile or over that is over five feet above sea level and that prevents any possibility of water intrusion from the ocean except, as is argued by appellants, that there is some water coming in from the salt water slough.’

Rodriguez Dam was constructed on the Tia Juana River by the Mexican Government about twelve miles upstream from the International Boundary and upstream from the junction of Cottonwood Creek with that river so that the waters impounded by the dam originate almost entirely in Mexico. It will store 110,000 or more acre feet. It was completed in 1936 and first commenced to store water in January, 1937. The only water flowing over its spillway was released during the heavy rainfall of 1940–1941.

It was constructed to furnish irrigating water for about 4000 acres of land below it which we will refer to as the Rodriguez Project. About two years after the dam began to function a return flow developed from the Rodriguez Project into the Tia Juana River. For the purpose of this opinion it will be sufficient to assume that this return flow was about 2000 acre feet annually.

Another unlooked for factor developed after the Rodriguez Dam was filled which has an important bearing on the available water supply of the Tia Juana River Basin in the United States. A serious leak developed in a rock wall of Matanuco Canyon so that considerable water escaped from the body restrained by the dam and found its way back into the Tia Juana River. While the parties do not agree as to the volume of this leakage, for the purpose of this opinion we will assume it to be 2500 acre feet annually which probably represents a minimum estimate. This leakage is continuous throughout the year.

Thus the Rodriguez Dam and the Rodriguez Project have produced a controlled supply of water to the Tia Juana River which we will assume is at least 4500 acre feet per annum. In this connection we should note that the tables of annual rainfall in San Diego show that the rainfall for the years 1939–40 to 1942–43, inclusive, were in excess of normal, with 1940–41 showing the heaviest rainfall since the season 1883–84. What the effect of a series of dry years and lowering the level of water behind the Rodriguez Dam would have on the leakage through the wall of Matanuco Canyon cannot be determined from any past experience. While at the present time this must be a matter for speculation it might not be unreasonable to expect that when the water level behind the dam was low the water pressure against the canyon wall would be reduced so there might be less leakage.

In speaking of the leakage from Rodriguez Dam and the return flow from Rodriguez Project, the attorney general in his brief candidly admits that ‘A final and accurate figure on total amount is not presently available but it appears to be substantial.’ Defendant seems to take a similar view when it states in its reply brief, ‘The admitted change in the regime of the Tia Juana wrought by Rodriguez Dam occurred in 1937, and five years of experience is certainly not sufficient to permanently freeze the amount of the flow.’ Plaintiffs seem to agree with this statement.

There is evidence in the record on the appeal from an order refusing to modify the judgment that there was a surface flow in the Tia Juana River in the United States for a greater part of the year 1943, and that the water level in the test wells in the basin had not been materially reduced by the pumping operations of defendant and the owners of other water rights. It is also clear that the leakage from the Rodriguez Dam had continued. During that year defendant pumped and exported 1164.25 acre feet of water from the valley basin and since its operations started in 1936 had pumped and exported more than 8000 acre feet of water. From this it is forcefully argued that the finding to the effect that the net safe yield of the basin is less than that reasonably required for beneficial use by owners with rights prior and superior to those of defendant is conclusively and finally contradicted by the evidence of the valley itself which has demonstrated that the withdrawal of water by defendant during a period of seven years has injured no owner of a prior water right and has conclusively established that there is surplus water in the basin subject to appropriation and export by defendant at least up to the amount of those past withdrawals. It is also urged that the leakage from the Rodriguez Reservoir and the return flow from the Rodriguez Project provided a new and substantial source of supply of water to the Tia Juana Water Basin in the United States and that the trial court in determining the net safe yield of the portion of the Basin in the United States erred in not considering this water as a substantial addition to the source of supply.

Before considering the question of the sufficiency of the evidence to support the finding to the effect that there is no surplus water in the Basin subject to appropriation and export by defendant over and above the water put to reasonable and beneficial use by those having prior rights, we should briefly set forth the rules of law which must govern the decision of the case.

The adoption of section 3 of Article XIV of the Constitution changed some of the rules theretofore in effect governing riparian rights in California. In Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486, 491, after quoting the cited section of the Constitution, the Supreme Court said:

‘The constitutional amendment, from its effective date, and as interpreted in the Gin Chow case [infra], has enjoined the doctrine of reasonable use as between the riparian owner and an appropriator. The limitations and prohibitions of the constitutional amendment now apply to every water right and every method of diversion. Epitomized, the amendment declares:

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

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

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

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

‘The foregoing mandates are plain, they are positive, and admit of no exception. They apply to the use of all water, under whatever right the use may be enjoyed.’ See, also, Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P.2d 5; City of Lodi v. East Bay Municipal Utility Dist., 7 Cal.2d 316, 60 P.2d 439; Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 81 P.2d 533; Meridian, Ltd. v. City and County of San Francisco, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105.

It is now settled in California that the rights of a riparian owner or an appropriator are limited to an amount put to a reasonable and beneficial use, allowing a reasonable margin for safety, and such reasonable and beneficial use as may be reasonably anticipated. The rights to the use of the balance of the waters is in the State and is subject to appropriation by other users under regulations adopted by the State. The purpose of the law is to prevent waste of waters and to preserve them for the beneficial use of the inhabitants of the State. The law cannot of itself destroy the vested right of use by an owner, but that right is limited to reasonable and beneficial use and cannot now extend to the waste of water. The cited cases support these rules which govern us in the decision of this case.

As we have observed, the trial court found the annual safe net yield of the basin to be 6000 acre feet with an annual reasonable and beneficial use of 7000 acre feet and a future annual reasonable and beneficial use of an additional 500 acre feet. This is in almost exact accordance with the testimony of Mr. Lee which is sufficient to support the finding.

Defendant makes numerous attacks on this testimony which in effect are attacks on the credibility of the witness and the weight to be given his evidence and are an endeavor to put these questions in issue here. They are questions committed to the decision of the trial judge and his conclusions on them are final on appeal even though we might entertain the belief that the weight of the evidence might lead to a contrary conclusion.

It is argued that the trial judge erred in determining the quantity of water withdrawn from the basin and put to beneficial use by including within his total withdrawals, waters which were not put to any reasonable and beneficial use, the loss of which could be prevented, thus leaving a surplus in the basin for appropriation by defendant.

The river bed is sand and gravel and is not fit for cultivation. Other lands have only salt grass and brush growing upon them which in the natural course draw water from the basin in an amount which defendant estimates to be at least 3000 acre feet. It is argued that this water is wasted and is of no beneficial use; that if the water level were reduced to a depth of from ten to fifteen feet instead of being permitted to stand at about five or a few more feet below the surface of the ground it would be below the roots of the largest brush and there would be no loss of water through these sources; that defendant should be permitted to reduce the water level by its pumping operations and thus save the 3000 acre feet for its own use.

This argument overlooks the danger of the intrusion of sale water into the fresh water basin of the valley. According to defendant this is now prevented by a fresh water barrier from three to five feet above the level of the sea which barrier must be maintained to protect the fresh water in the basin from being mixed with the salt water of the ocean.

The westerly contour line appearing on the maps before us show an elevation of ten feet above sea level with the general slope of the ground descending westerly towards the sea. This contour line, generally speaking, is more than a quarter of a mile east of what defendant describes as the west end of the fresh water in the valley basin. If the fresh water level is reduced from ten to fifteen feet below the level of the ground the danger of the infiltration of salt water into the fresh water basin would become immediate. It is not questioned that once salt water has intruded into a fresh water basin it is very difficult if not impossible to leach it out. The intrusion of the salt water into the basin would render all wells affected worthless as salt water cannot be used in agriculture.

Defendant suggests that if it were permitted to lower the water level in the basin (at one point it suggests 45 feet) it would create voids in the upper strata of the basin which would be filled during the floods of wet years and thus save the amount of flood water so absorbed from wasting into the sea. Under ordinary conditions this might be an appealing argument. Under the special conditions prevailing here there is the ever present danger of the intrusion of salt water into the fresh water basin. Thus the question of providing underground storage for flood waters by substantially lowering the water level should be eliminated from serious consideration.

It is true that the trial court found ‘it to be untrue that the pumping by the defendant and cross-complainant has hitherto increased the saline or alkaline content of the water in any of the wells of plaintiffs or cross-defendants, or caused any of them to become brackish or unfit for use, and that it has not been established that there has been up to this time any substantial intrusion of sea water in the Tia Juana River Basin as a result of such pumping by defendant and cross-complainant.’

The trial court went on to find that because of long salt sloughs protruding inland from the ocean, with fresh water springs in the bottom, there would be serious danger of salt water intrusion into the fresh water of the basin if the water level were lowered by the pumping operations of defendant, and ‘that the continued pumping by defendant and cross-complainant, especially during drouths would materially increase the hazard of such salt water intrusion by lowering the water table to a point where it would substantially reduce the effeciency of or totally destroy the effectiveness of the fresh water barrier normally operating to hold back said sea waters from said basin.’

These findings, supported as they are by evidence, should effectively dispose of the two arguments last considered.

Also there is evidence to the effect that land west of the present fresh water barrier was at one time productive, even supporting a walnut orchard on a parcel of it. Much of this land is now so impregnated with salt that it is unproductive. While this cannot be charged to the operations of defendant it shows an encroachment of salt eastward from the ocean.

Several owners or tenants testified that their wells formerly producing usable water, produced alkaline water after defendant's pumping operations started. While, under the findings, this cannot be charged to defendant it shows the danger of salt water intrusion into the fresh water basin if the water level is sufficiently lowered.

We must now turn to the contention that the finding to the effect that there is no surplus water in the basin subject to appropriation and removal from the valley is contrary to the evidence of the valley itself. In this connection it will be necessary to consider the leakage from the Rodriguez Dam and the return flow from the Rodriguez Project which the trial court refused to consider as a dependable part of the water supply of the basin in California.

In approaching this question we should first note the testimony of several property owners and tenants to the effect that after the pumps in defendant's wells had been operating the amount of water pumped from wells on the lands of the witnesses was seriously reduced so that the hours of pumping had to be extended and labor and power costs were increased thereby.

Of course it is easy to understand the reason for this lessened production in wells in the actual cone of depression caused by taking water from defendant's wells. Mr. Lee explained the phenomenon affecting wells well beyond the cone of depression. He was of the opinion that pumping from defendant's wells created a cone of depression of considerable size which reduced the water pressure of considerable added distances so that the flow towards the land owners' wells was slowed and reduced leaving a smaller supply subject to removal by their pumps.

Defendant maintains that the finding that there is no water in the basin subject to removal by defendant is contradicted by other findings and the portion of the judgment permitting it to pump and export 1100 acre feet in 1942, 1100 acre feet in 1943, and 550 acre feet in 1944, and by the further fact that since starting its operations in 1936, defendant has pumped and exported over 8000 acre feet of water from the basin without materially lowering the water level there.

The reasons impelling the trial court to permit defendant to pump and export water from the basin as well as some of the reasons why the water level of the valley had not been materially lowered by the pumping operations is set forth in the findings which may be summarized as follows:

Because of the increased population of the San Diego Bay District due to war conditions, causing need for additional water, it is desirable that defendant be given temporary permission to pump and export more water from the basin than would otherwise be permissible. Due to the unusually heavy rainfall during 1940–41, large quantities of water were stored behind Rodriguez Dam and because of seepage and return flow the basin in the United States has been recharged during that and the two succeeding years so that defendant may be permitted temporarily to pump and export water without injury to other owners of water rights. This right cannot be extended indefinitely because the surplus exists by reason of this seepage and return flow which may be intercepted by pumping or other operations in Mexico.

Further, the records before us show an annual average rainfall during the years 1936–37 to 1942–43, inclusive, (being the years in which defendant operated its pumping plants) of 13.66 inches, while the average annual rainfall since 1850 has been 10.04 inches. Thus the average annual rainfall since July 1, 1936, has exceeded the average annual rainfall over the longer period by over one-third. This might furnish one reason why the water levels were not lowered in 1943.

Defendant cannot base its estimated annual safe yield of the valley nor its right to pump and export water therefrom on years of heavy or above average rainfall. The history of rainfall in Southern California for 162 years shows considerable periods of serious drought broken by other periods of above average rainfall. Nature may repeat its performances of the past, and probably will, so the inequity of besing the annual safe yield of any watershed in Southern California on the supply in wet years without considering years of normal or subnormal rainfall is immediately apparent and cannot be approved. Under the circumstances disclosed here we find no inconsistency in the findings on this subject, nor any error in permitting defendant to take water from the basin to relieve the excessive demand for water which the great increase of population in the San Diego Bay district has placed on all water supplies. If the above average rainfall of the past few years has produced a surplus of water in the Tia Juana River Basin, as the evidence indicates and the trial court found, it was common justice to permit defendant to pump and export that surplus to supply the very considerable demand placed upon it by war conditions. It does not follow that the above average rainfall will continue indefinitely nor that the net safe yield of the Basin may be determined from the water available during those years. Riparian owners and prior appropriators are entitled to the water which they put to reasonable and beneficial use in dry as well as wet years, if that supply is available, and in years of deficient supply the right may not be invaded by another having a subordinate right.

We must now consider the question of the regulated supply of water resulting from seepage from the Rodriguez Dam and the return water from the Rodriguez Project which we assume was about 4500 acre feet per annum.

The trial court refused to consider this water as a safe, established and dependable source of supply in replenishing the portion of the Basin in the United States for two reasons.

First, it was held that the construction in Mexico was of such recent origin that the annual future yield could not be safely estimated and therefore furnished no safe basis for a judgment which would permit the future removal from the basin of water finding its origin in that source. This is probably true and is supported by the evidence and by the admissions already quoted from the briefs of defendant and of the attorney general who is supporting some of the arguments of defendant. This may be true as to past performances but it also furnishes an argument for the trial court's retaining jurisdiction over the case with the right to determine available water supply and to modify its findings and judgment if and when it could be made to appear that the leakage from the Rodriguez Dam and the return waters from the Rodriguez Project, or either of them, were sufficiently dependable and determined to furnish a reasonably definite supply of water to the portion of the Basin in the United States. We will return to this subject when we reach the question of the advisability of modifying the judgment so that the trial court will retain jurisdiction over the case.

Second, the trial court refused to consider the leakage from the Rodriguez Dam and the return flow from the Rodriguez Project as a legal and dependable source of supply of water to the portion of the Basin in the United States, because, before crossing the International Boundary Line those waters were entirely within the Republic of Mexico which, in the absence of a treaty, could reclaim them or prevent their entry into this country. The city attorney of San Diego informs us that a treaty bearing on this question has been negotiated but not ratified so we must assume the truth of the facts on which this conclusion is based, for it is true that no citizen of the United States, either by use, prescription or otherwise could gain any rights under which he could compel the Republic of Mexico to release any of this water into the United States in the absence of a treaty on the subject.

If this argument is sound it would apply to all the water in the Tia Juana River and its tributaries entering the United States as those waters flow entirely in Mexico for several miles before crossing the International Boundary Line and thus are subject to interruption and appropriation in their entirety by Mexico or her citizens. Thus if the conclusions of the trial court are sound, to the effect that waters which escape from Rodriguez Dam and the return flow from the Rodriguez Project cannot be considered a legal and dependable source of supply to the portion of the Basin in the United States because they may be recaptured or their flow interrupted in Mexico, then there is practically no legal and dependable supply of water upon which any of the parties before us may rely because all of the water of the Tia Juana River upstream from the International Boundary Line could be taken in Mexico which might prevent any of those waters from crossing the International Boundary Line.

Plaintiffs seek to support the conclusions of the trial court to the effect that the leakage from Rodriguez Dam and the return flow from Rodriguez Project could not be considered in determining the annual safe yield of the valley because those waters were merely waste waters. Defendant adds the term ‘foreign waters' to its designation of those waters.

Plaintiffs rely on Albaugh v. Mt. Shasta Power Corp., 9 Cal.2d 751, 73 P.2d 217, to support their argument. This case decided several actions which finally resolved themselves into suits for damages by plaintiffs for diminution of the supply of water to their lands riparian to the Pitville Pool. Involved in the question of the supply of the Pool was water from the McArthur Canal and the Knoch Pipe Line, certain rights to which were based on prescription. As no riparian owner had gained any such legal right to the use of any of such waters the court concluded that the water from those sources could not be considered because they could be interrupted or taken away at any time.

We do not regard the Albaugh case as controlling here. That was an action for damages to plaintiffs' lands caused by diversion of waters. As plaintiffs had no riparian nor appropriative rights in the waters of the McArthur canal or that Knoch pipe line no property right of any of them could have been invaded by the interruption of their flow.

We do not regard the terms ‘waste waters' or ‘foreign waters' an appropriate designation for the waters escaping from the Rodriguez Dam or returning from the Rodriguez Project. Such waters are and always have been part of the waters of the Tia Juana River. It is true that their natural flow down that river has been interrupted by the dam but they return to the river and proceed to flow towards the ocean either in the surface channel or through a well defined underground channel partly in Mexico and partly in the United States. To hold that those waters, after they enter the United States, are not subject to the laws of California would be as illogical and destructive of established rights as would a similar holding as to waters of streams and rivers within the State which are released after such flow has been interrupted by dams constructed on them.

What was said in Crane v. Stevinson, 5 Cal.2d 387, 54 P.2d 1100, 1104, concerning foreign waters is applicable here: ‘* * * there should remain no present doubt that the so-called foreign waters are now subject to appropriation under the laws of this state. The fact that, where such waters have been brought into a stream as the result of abandonment by another appropriator, there is no way to compel him to continue such abandonment, necessarily affects the value of the subsequent appropriation right, but does not affect the existence of the right, subject to the limitation caused by the nature of the water supply in question. In section 11 of the Water Commission Act it is provided that all waters flowing in any river, stream, canyon, ravine, or other natural channel (with stated exceptions) ‘is and are hereby declared to be public waters of the state of California and subject to appropriation in accordance with the provisions of this act.’' Sec. 11, Water Commission Act, Stats.1913, p. 1012, as amended, superseded by secs. 1200, 1201, Water Code, Stats.1943, p. 1604. See, also, Bloss v. Rahilly, 16 Cal.2d 70, 104 P.2d 1049.

Of course at the time of the decision of this case the leakage from the Rodriguez Dam and the return flow from Rodriguez Project were of too recent origin to be considered as a fixed and dependable source of water supply to the portion of the basin in the United States to enable the trial court to base its injunctive relief on that source of supply. Time will remedy this situation and when it does any modification of the judgment in this case should include and be based on a consideration of that source of supply to the water of the Tia Juana River and its underground basin in the United States. The fact that this source of supply might be interrupted in Mexico at some future date should not prevent its consideration any more than the further fact that the entire surface and underground flow of the river might be cut off in Mexico. This is a strong reason why the trial court should have retained jurisdiction over the case. The purpose of the law as it now exists is to prevent the waste of water, and evidence produced at the hearing of the motion to modify the judgment at least suggests that such waste may be occurring and that further investigation might show there may be surplus water from Rodriguez Dam and Rodriguez Project finding its way into the basin in the United States so that it might prove true there will be some water to at least partially supply some of the needs of defendant. This is a matter for future determation and any further discussion of it here would partake of speculation on future events.

Defendant maintains that the trial court erred in granting an injunction without finding present actual damage to riparian owners and prior appropriators from pumping operations of defendant.

It is not necessary for the party threatened with damage to wait until his property has been injured or destroyed before he seeks the protection of equity. A prohibitory injunction will issue to prevent threatened damage and a mandatory injunction to remove the cause where damage has been done. Island Rec. Dist. No. 776 v. Floribel Alfalfa Syndicate, 167 Cal. 467, 140 P. 4; Allen v. Stowell, 145 Cal. 666, 79 P. 371, 68 L.R.A. 223, 104 Am.St.Rep. 80; Eames v. Philpot, 72 Cal.App. 151, 236 P. 373; Harlow v. Feder, 89 Cal.App. 435, 264 P. 782. Here the trial court found threatened damage and there is ample evidence to support the finding so the power of the trial court to issue the prohibitory injunction must be sustained on appeal.

It is contended that the trial court erred in not differentiating between various classes of the plaintiffs and cross-defendants who appeared, and in issuing an injunction in favor of all of them as it is maintained that some of them cannot be injured by the pumping operations. Defendant divides these owners into several groups.

It seems to be conceded by all parties that the underground basin is so interconnected that it forms a lake of water lying in sand and gravel and that there is a continuous movement of the water towards the ocean.

The danger of the intrusion of salt water into the basin and the consequent damage to land owners has been considered. Just how far east of the present fresh water barrier the salt water might percolate if the water table is seriously reduced is not made clear. However the contour maps show the elevation of the surface of the ground above sea level and the evidence shows the depth of the bed rock below the surface which might indicate that salt water would intrude into the basin for some distance east of defendant's pumping plant if the water level is sufficiently lowered. It is an established fact that the bed rock at the International Boundary is a number of feet below sea level. This intrusion of sea water is a threatened danger, especially during periods of drought, admitted by witnesses for defendant as well as those of plaintiffs.

Defendant points out that there are certain clay deposits in the valley fill which are not water bearing and that the lands of some of the parties lie over and west of the fresh water barrier and that there is no usable water west of that line.

There is no certainty that the fresh water barrier exists on the exact line marked on the exhibits of defendant. In fact the trial court expressed doubt on this subject and did not find its exact location. All of the lands overlying the valley fill are riparian and as such are entitled to the use of water. We do not know of any rule of law that requires a riparian owner to obtain his water from the supply exactly underlying each part of his holdings. There is evidence indicating that some of the land lying west of the line claimed by defendant to be the line of the fresh water barrier was cultivated and was producing crops irrigated with fresh water coming from the valley fill, at the time of the trial. Those riparian owners have the same right to the protection of their water supply as have the other riparian owners of land overlying the fresh water basin. The same is true of owners of land overlying the clay deposits. There is no showing that all of the land of any owner is over a clay deposit. That land is capable of cultivation and is entitled to its rightful share of the waters of the basin. This is also true of the lands on Nestor Terrace.

Defendant contends that those riparian or prior appropriative owners in the east end of the valley could not be injured by the pumping operations of defendant and therefore were not entitled to injunctive relief.

The trial court found on sufficient evidence that the net safe yield of the valley was 1000 acre feet less than the reasonable and beneficial needs of the riparian and prior appropriative owners and 1500 acre feet less than their prospective reasonable and beneficial needs which should be a sufficient answer to this argument. As the water in the basin has the characteristics of an underground lake, pumping by defendant of water for export would increase the deficit and thereby lessen the available supply of all land owners. Further, Mr. Lee testified that the pumping operations of defendant created what he termed ‘pressure shock’, that is a lessening of the water pressure in the valley fill far beyond the actual cone of depression. This reduction in pressure reduced the amount of water which could be pumped from other wells and interfered with the land owners' water supply.

Defendant contends there was serious error in enjoining its pumping operations when many riparian owners were not parties to the action when the judgment was signed and entered.

It is true that those owners are not bound by the judgment. Further, the judgment does not specifically run in their favor but only inferentially in determining the net safe yield of the valley and the reasonable and beneficial needs of the owners, present and prospective.

By its cross-complaint defendant sought to have determined that there was a surplus of water in the valley, subject to its appropriative rights, over and above the present and prospective reasonable and beneficial use of all of those having rights prior to the rights of defendant. As the waters in the valley had the characteristics of a lake we cannot see how this question could have been settled without a determination of the reasonable and beneficial needs of all the owners of water rights superior to those of defendant. We find no error in this phase of the case as the issue was raised by the pleadings of the defendant.

Defendant points out that there is an error in the description of the lands of cross-defendants Henry B. Clark and Lena S. Clark. This is true and we will correct it.

Defendant contends that the City of San Diego is estopped from contesting defendant's claim by a resolution of its governing body approving a contract settling a controversy with defendant's predecessor, in which resolution the following appears: ‘California Water & Telephone Company will endeavor to develop an additional and independent supply of water to lessen the burden now resting on the City.’

We can see nothing in the foregoing upon which estoppel in this action can be based. There is no representation, express or implied, that the city would not object to defendant taking water from the Tia Juana River Basin to which it was not entitled and to the damage of the City of San Diego and other owners.

One position taken by the City of San Diego in its brief is unusual to say the least and may represent a complete change of the position taken in its pleadings and during the trial which resulted in a judgment in its favor. Some explanation of this may be found in the fact that there has been a change in the legal staff of the city.

It is stated in its brief that San Diego is interested in constructing a dam across Cottonwood Creek at the Marron Damsite where the creek crosses the International Boundary Line; that a treaty between the United States and Mexico has been signed, but not ratified, authorizing ‘investigation looking to the construction by the City of San Diego and the Republic of Mexico of the Marron Dam and the impounding and storage of water in a reservoir behind such dam.’ The present position of the City of San Diego is thus expressed by her counsel: ‘However, we do sincerely believe that we are justified in making the claim that, if this Judgment is res judicata and forecloses the City from asserting or exercising its right to impound and use for public purposes the waters of the Tia Juana River and its tributaries above the Marron Damsite, public policy and the public interest of the hundreds of thousands of people residing in this area of the State demands some action on the part of the Appellate Court which will enable the City to utilize these waters for public purposes. If, on the other hand, the Judgment is not res judicata as to the City's rights to develop and utilize the waters of this river and its tributaries above the Marron Damsite, we respectfully ask this Court to affirm the Judgment of the lower Court.’

The construction of the Marron Dam, as far as we are advised, was only mentioned incidentally in this action. Certainly its construction and impounding of waters behind it was not an issue presented to or decided by the trial court. Thus we have no facts before us upon which to base an answer to the question presented. However, it might not be out of place to mention in passing that the City of San Diego, the plaintiffs and the other cross-defendants were not adverse parties in this action (Hardy v. Rosenthal, 2 Cal.App.2d 442, 38 P.2d 412) and that the right to construct the Marron Dam and to store water behind it was not litigated between them.

Defendant presented a physical solution of the problems presented in this action which the trial court considered but did not adopt. The trial court proposed its own physical solution which it did not adopt because of the considerable delay incident to putting it into effect. The one it proposed was unified control and distribution of the available waters of the basin through the means of some entity such as a district or corporation organized for that purpose which, it was believed, would conserve sufficient water to permit defendant to export part of it for use by its customers.

It is now urged that it was the duty of the trial court to adopt and enforce some physical solution; that if one were not found it then became its further duty to refer the whole matter to the Division of Water Resources for solution; that it was a breach of judicial discretion to fail to so refer the question.

In City of Lodi v. East Bay Municipal Utility District, 7 Cal.2d 316, at page 339 et seq., 60 P.2d 439, at page 449, the court said: ‘The question is, Can the right of the city be fully protected without requiring the tremendous releases entailed in this decree? Those releases, after they serve the purpose of forcing a relatively small quantity of water into the surrounding underground water table, for the most part, waste into the sea. Under such circumstances, the 1928 constitutional amendment, as applied by this court in the cases cited, compels the trial court, before issuing a decree entailing such waste of water, to ascertain whether there exists a physical solution of the problem presented that will avoid the waste, and that will at the same time not unreasonably and adversely affect the prior propriator's vested property right. * * * The court possesses the power to enforce such solution regardless of whether the parties agree. If the trial court desires competent expert evidence on this or any other problem connected with the case, it possesses the power to refer the matter to the division of water rights of the board of public works, or to appoint it as an expert. (Citing cases.)’

Plaintiffs maintain that the trial court did actually decree and put into effect a physical solution, which was to permit plaintiffs and cross-defendants to pump and use the water from the underground basin that was necessary for their reasonable and beneficial use and to permit defendant to take and export the surface flow of the river that otherwise would waste into the sea. This is perhaps a physical solution of a temporary nature, it clearly appearing that the trial court believed that unified control was the only practical physical solution. This practical physical solution was not ordered put into effect because of the impossibility of obtaining necessary materials due to war conditions and the considerable delay incident upon organizing an entity to put unified control into effect and to gather into it all of the respective water rights involved. That this may present a workable physical solution may be possible. At least the trial judge so believed. These conditions furnish an added reason why the trial court should have retained jurisdiction over the case so that some physical solution could have been worked out at an appropriate time. It is clear that the trial court regarded the physical solution proposed by defendant too cumbersome, involved and unsatisfactory to adopt it.

The law does not place a positive duty on the trial court to refer a problem, such as the one before us, to the Division of Water Resources for solution or advice. The matter of such reference is one of discretion. Sec. 24, Water Commission Act, Stats. 1913, p. 1012, as amended, superseded by sec. 2000 et seq., Water Code; Peabody v. City of Vallejo, supra; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 45 P.2d 972; Rancho Santa Margarita v. Vail, supra; Fleming v. Bennett, 18 Cal.2d 518, 116 P.2d 442. Under the facts before us we cannot regard the failure to refer the matter to the Division of Water Resources as reversible error.

The question of the interpretation to be placed on the decree was stressed on the motion for new trial. Defendant maintained that the decree permitted it to take only such part of the surface flow of the stream as would otherwise waste into the sea and in doing this it could not operate the pumps in its wells as they would draw upon the underground waters of the basin. A careful study of the decree indicates that this is not an unreasonable construction to place upon it.

That the trial judge did not intend any such result is made clear by the following remarks in denying the motion for new trial: ‘The next and fourth point is that it is claimed that the judgment is too strictly worded. * * * I don't believe that the language as it now stands would forbid pumping from underneath the surface when the surface stream was running into the ocean and so far surrounded and over-run the cone of depression as to practically instantly fill the areas which the pump should void, and thus leave no substantial cone of depression at all. The inhibition obviously is intended to prohibit such pumping from the underground basin as shall result in leaving voids there. The mere mechanical use of the pumps to get water from beneath the ground at such times as no voids would result would hardly be an infringement of the language of the Court.’

At the hearing of the motion for new trial one of the counsel for plaintiffs made the following statement: ‘All I think the judgment should provide is that they should only be allowed to pump at such times as the water is wasting into the sea. If that condition prevails and there is a wastage into the sea, it is immaterial to us whether they take water from underground or from a pipe from the surface flow.’

In order to remove any doubt on the question and carry out the expressed intention of the court we will add a paragraph to the judgment permitting defendant to pump water from its wells when the surface waters of the Tia Juana River are flowing by the pumping plant and, without the operation of the pumps, would waste into the sea.

We have already expressed the opinion that the trial court should have retained jurisdiction over this case, especially in view of the possibility of the leakage from the Rodriguez Dam and the return flow from Rodriguez Project providing such an added dependable supply of water, that the net safe yield of the Basin might be so increased as to create a surplus of water beyond the present and prospective reasonable and beneficial needs of the land owners so that defendant might be able to pump and export part of it. We are of the opinion that if and when the amount of water from this source may be reasonably determined it should be taken into consideration in determining the net safe yield of the valley. However, these conclusions do not require a reversal of the judgment but merely its modification. Under the decision of the case of City of Lodi v. East Bay Municipal Utility District, supra, we believe we should modify the judgment so that the trial court would retain jurisdiction over the case.

Some of the facts in the City of Lodi case are somewhat similar to those of the instant case. The city of Lodi obtained its municipal water from wells which penetrated sands which were fed from waters percolating from the Mokelumne River. The East Bay Municipal Utility District had constructed a dam on the river upstream from Lodi and was transporting water so stored to the East San Francisco Bay District. The city of Lodi was situated in what is called the Lodi Basin comprising about 34,000 acres. About 2000 wells penetrated sands fed by waters from the Mokelumne River to supply water to lands owned by various persons. The trial court refused to retain jurisdiction over the case and required the district to release large and fixed quantities of water down the river to replenish the sands of the Lodi Basin.

On one phase of the case the Supreme Court said: ‘The District may find it necessary to condemn or otherwise acquire the water rights of the private riparian and overlying owners in this area. But, if the District should so acquire every private water right in the area, it would still be compelled under the decree to release the tremendous quantities of water above mentioned to protect the plaintiff's prior right.’ This is equally true in the instant case. If the defendant should acquire the riparian rights of a majority of the land owners the present decree would prohibit it from pumping and exporting any of the underground waters even though it was willing to supply the remaining land owners with water sufficient for their needs.

In the City of Lodi case, in speaking of the duty of the trial court to retain jurisdiction so the decree might be modified to fit any new condition that might arise, the Supreme Court said: ‘The trial court should by its judgment preserve its continuing jurisdiction to change or modify its orders and decree as occasion may require. * * * It would accord to the District the right, and place upon it the duty, of working out a physical solution unhampered by a rigid decree which, with changing conditions and new methods of conservation constantly being developed, may not only operate inequitably but might actually encourage waste.’

The City of Lodi case differs from the instant case in one important particular. In that case there was no danger of salt water intrusion resulting from lowering the water level in the Lodi Basin. Thus what was said in the Lodi case about lowering the water table in the Lodi Basin is not applicable here.

It is ordered: That the following be and is hereby stricken from finding XVI(xx): ‘All that portion of the West Half (1/212) of the Northeast Quarter (1/414) of Section Five (5), Township Nineteen (19) South, Range Two (2) West, S.B.M., described as follows:’ And in lieu thereof insert the following: ‘All that portion of the West Half (1/212) of the Northwest Quarter (1/414) of Section Five (5), Township Nineteen (19) South, Range Two (2) West, S.B.M., described as follows:’

That the following paragraph, to be numbered VII–A, be and is hereby added to the judgment: ‘Defendant and cross-complainant, California Water & Telephone Company may operate its pumping plants and pump water from its wells on its land in the Tia Juana Valley and export that water for use by its customers when surface river waters are flowing in the bed of the Tia Juana River and which surface waters, if not intercepted by such pumping operations, would waste into the Pacific Ocean or into San Diego Bay.’

That paragraph VIII be and is hereby stricken from the judgment and in lieu thereof the following is substituted: ‘That the Court hereby reserves jurisdiction in this action over the parties and the subject matter so that on application of any party hereto or the successor in interest of any party, it may take new evidence (1) on the amount of water seeping or released from the Rodriguez Dam and the amount of the return waters from the Rodriguez Project reaching and crossing the International Boundary Line between the Republic of Mexico and the United States of America either in the underground sands and gravels or by the surface flow of the Tia Juana River, and (2) on the subject of the water supply and reasonable and beneficial use of water in the portion of the Tia Juana River Basin in the United States indicating any condition of such water supply or use which have changed since the date of this judgment with the right to make modified or additional findings of fact and conclusions which may be supported by such evidence and to modify this judgment in accordance therewith under the law in force at that time.’

As so modified, the judgment is affirmed.

No party will recover any costs of appeal.

MARKS, Justice.

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